Legal Assistants Are Not Lawyers

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Experienced legal assistants and paralegals can be instrumental in helping a lawyer prepare a case for trial. But only lawyers can practice law.

Sounds simple, but just what does it mean to “practice law?” Is there a comprehensive definition of what constitutes the practice of law?

In simple terms, the practice of law includes having a license that permits the lawyer to appear in court and represent another person. But, in a broader sense, the practice of law is primarily characterized by the giving of legal advice and counsel.

But, if the core element of practicing law is giving legal advice and counsel, where do legal assistants and paralegals fit in?

Can assistants give legal advice?

The answer is a definite no. Legal assistants are not permitted to provide legal advice.

Giving legal advice and counsel is the sole role of the lawyer.

To be effective the lawyer has to have the confidence of the client, and the two need to establish a sensitive working relationship wherein the client feels free to share confidential information with the attorney, and the client feels comfortable letting the attorney manage the affairs of the client.

Nevertheless, a legal assistant can be extremely helpful in gathering information that the attorney and client need for the attorney to give advice and assist the client. A legal assistant can coordinate meetings, organize and summarize information, research aspects of the facts and law of a case, and report their findings to the lawyer.

Still, it is the attorney who must analyze the gathered information and advise and assist the client.

Legal assistants and other law office staff members cannot operate an attorney’s law office or conduct business on behalf of clients while an attorney is out of the office.

Nor can a lawyer delegate or subcontract out the management of a client matter to a non-lawyer.

A lawyer cannot leave non-lawyers in charge of a case.

In short, while the work of legal assistants is critical to the practice of law, the activities of legal assistants and other law office staff members must be carefully supervised by the lawyer.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”

Using Computer Animations in Trial

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

In past episodes, we have discussed accident reconstructionists.

If you have watched home remodeling shows you have likely seen how they will use a computer-connected camera to scan a room.

They are taking laser precise measurements during this scan.

Once they have a scan of the room they will show computer simulations of how the room might look with different cupboards and fixtures.

The simulation or animation allows everyone to quickly visualize the room with different looks.

Accident reconstruction experts use similar technology.

They will scan a crash scene, scan in photos from the scene, grab data from Google Earth imagery, and reconstruct a crash scene. They can also use lasers to measure vehicle crush against the actual vehicles involved in the crash.

Once they have the scene and vehicle information, they can simulate different scenarios based on assumptions of vehicle size and weight, speed at impact, weather conditions, and the like.

The experts can use their 3D models of the scene and vehicles to illustrate their testimony in court.

An animation of this sort can be very powerful and instrumental in explaining to a jury what happened at the moment of impact.

The animation visually depicts what happened, and even can include several different views and slow-motion segments.

Animations are what is called demonstrative evidence. The animation visuals demonstrate the reconstruction expert’s opinion.

It can take much work to create an accurate animation, but it takes less than 5 minutes to display the animation to the jury.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

If You Sue Do You Lose the Physician-Patient Privilege

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Occasionally we have a client who asks if all of their medical records will be viewable by the defendant’s attorney.

The answer is that it depends on how the court rules.

But most of the time by filing a personal injury lawsuit, a plaintiff does not open up their entire medical record to pre-trial examination by the opposing party and counsel.

Absent litigation, medical records are protected by the physician-patient privilege. Courts generally hold that as to conditions relevant to the lawsuit, the party filing suit waives the physician-patient privilege.

However evidence regarding a prior physical condition not related to the injuries being claimed often is held to be not discoverable or admissible.

Only medical matters in the medical records, pertaining to the injury complained of, have probative value.

Unrelated matters would be calculated to mislead and confuse the jury and would work to the prejudice of the plaintiff.

Here is an example, a person complains of a back injury suffered in a car crash in 2023. In their medical history, they had a complaint of back pain in the year 2010. The record shows they had counseling for alcohol addiction in 2008.

A court might well find that the 2010 back pain complaint is discoverable, and at the same time find that the treatment for alcohol addiction in 2008 shall remain private.

Here is how a court will analyze the issue, where evidence of prior pain or conditions logically relates to the injuries complained of, the information will be discoverable and likely admissible.

An exception to allow discovery and admission of a seemingly unrelated condition would be if the condition reasonably would impact life expectancy.

Where a person is complaining they will experience back pain for the rest of their life, but their life likely will be cut short as a result of a terminal illness, then the condition is discoverable and admissible.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Workers Compensation Lifetime Care Injuries

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

In Indiana, a catastrophically injured worker often will qualify for lifetime medical care.

What do I mean by catastrophically injured?

Take, for example, a worker who suffers an injury rendering them wholly or partially paralyzed. Such a worker often will qualify for paid medical care for life under the work injury laws in Indiana.

Such a catastrophically injured worker also will typically qualify for Medicare, or after a several-year waiting period will qualify for Medicare.

For a number of reasons, settlements of catastrophic work injury cases can be difficult.

Why? Because the attorney representing the injured worker must fashion a partial settlement that does not foreclose the catastrophically injured worker’s ability to get needed future medical care. At the same time, the attorney defending the claim will want to limit a payout on future medical care costs.

This typically leads to a stalemate.

What makes a settlement even more difficult is that Medicare will step in to make sure the burden of future medical care is not shifted to Medicare by the workers compensation insurance carrier as part of a settlement.

Medicare has great leverage to protect its interests. If the catastrophically injured worker were to run out of medical care money under a negotiated settlement with the workers compensation carrier, Medicare could penalize the insurance carrier and others involved in the settlement.

On the other hand, if a case is kept open and unresolved, both the catastrophically injured worker and the workers compensation carrier have ongoing risk, which is not good for either party.

A lack of proper medical care could lead to premature death. While a  family may be entitled to workers compensation death benefits under the Indiana Workers Compensation Act, this benefit rarely will compensate a family for the loss of a breadwinner.

On the other hand, if the catastrophically injured worker lives a normal life expectancy, the workers compensation insurance carrier may be required to spend millions of dollars to provide the required statutory medical care.

So the injured worker in need of ongoing care, and the insurance carrier paying out medical benefits, both have an incentive to arrive at a settlement under arrangements approved by Medicare.

The big question then becomes is there a middle ground where all parties can settle in a way that will garner Medicare approval?

Most of the time the answer is yes.

What does Medicare typically want to accomplish? It wants to see the workers compensation carrier fund the bulk of ongoing medical care, and make sure Medicare is only a last resort payor should settlement funds run out.

How can a settlement be accomplished in such cases? Typically it involves a structured settlement approved by Medicare, which we discussed in Podcast Episode 280.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Who Can Attend a Deposition

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

You may have heard that at trial, upon motion of one of the parties, the court can issue an order separating witnesses.

What does this mean?

It means that if the court orders the separation of witnesses until a witness testifies, the witness needs to stay outside of the courtroom and not hear or see another witness testify.

The reasoning behind such an order is that it prevents witnesses from coordinating their stories.

In theory, a separation of witness order makes sense. But what about witnesses attending the depositions of other witnesses?

The same principle applies. Without a court order, a potential witness in a case can attend the deposition of another witness.

Of course, a party can seek a motion for a protective order to prevent one witness from attending the deposition of another witness or prevent the reading of a deposition transcript before testifying in a deposition themselves.

But in practical terms does this work?

Consider experts for example. Many experts must base their opinions on what witnesses testify as to their observations.

For example, in a medical negligence case, an expert consulted by the plaintiff will almost always need to know what the target defendant doctor has to say about the medical treatment or lack thereof at issue. It would be shocking if a court were to issue an order preventing the disclosure of a treating doctor’s testimony in such a situation.

A party to a lawsuit, however, can never be excluded from a proceeding.

For example, if a husband and wife are both suing for injuries suffered by the wife in a crash, a court cannot exclude either of them from attending each other’s depositions, or the depositions of the defendant, and cannot exclude them from being in the courtroom at trial while other witnesses testify.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Is There Really a Right to a Civil Jury Trial?

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

You may have heard that the U.S. Constitution guarantees a right to a jury trial in a civil lawsuit. While that is technically true, judges have over 200 plus years greatly watered down that right.

One of the many ways judges have restricted jury trials is by entertaining a type of motion which asks them to summarily rule on a case and thereby take a case away from a jury.

The motion is not surprisingly called a summary judgment motion.

A summary judgment motion is treated differently in state and federal courts.

Not surprisingly, federal court judges step in to rule on cases, taking them away from the jury, much more frequently than do state court judges.

Under Indiana law, a party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists, and once the moving party has met this burden, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist.

Let’s pause for a second.

Why does the rule require the court and parties to focus on whether a genuine issue of material fact exists?

Well, obviously all lawyers know that the Constitution exists and guarantees a jury trial.

Some lawyers see the Constitution as an obstacle. When people see an obstacle, their tendency is to find a work-around that obstacle.

So the traditional time-tested way around the Constitution is to file a motion with the judge saying in effect “Judge, the facts are so clear and not in dispute, so there is really no need, judge, to waste time calling together a jury. In fact, judge, the facts are so clear that no jury would ever rule in any way except in our favor, so we ask you to summarily rule in our favor, judge.”

As we just said, in Indiana, the nonmoving party can avoid summary judgment and still take their case to a jury by showing the judge that a genuine dispute as to material facts exists.

But the federal standard is much different.

If you are in a federal court, summary judgment is required to be granted against a party who fails to establish an essential element of that party’s case.

This may seem like a slight difference in language, but it is a huge difference. It gives a federal judge much more leeway to take a case away from a jury.

Why is this issue important?

Because if a defendant can somehow land a case in federal court, they have a higher percentage chance of getting the case tossed out of court and avoiding a trial by jury.

Defendants know that statistically, juries are much tougher on defendants overall.

Juries are made up of non-lawyers. Juries often see through legal smoke screens that big corporate defendants raise in court.

A plaintiff’s odds of winning increase greatly if they can get their case heard by a jury.

A defendant’s odds of prevailing increase greatly if a jury never hears the case.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Intentional Infliction of Emotional Distress

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

In our last episode, we discussed the subject of negligent infliction of emotional distress.

In this episode, we discuss intentional infliction of emotional distress.

Yes, in Indiana, if someone intentionally causes another to suffer emotional distress the law recognizes that as grounds to sue.

The key case discussing the subject of intentional infliction of emotional distress was decided in 1991. It involved the following set of facts:

A young man spoke with a 16-year-old girl. Later that day several members of the girl’s family came to the young man’s house and leveled a number of unsavory accusations at him. One of the group had a pistol strapped to his side. The young man was extremely frightened and feared he would be shot. The young man became nervous, depressed, and had difficulty sleeping, and required psychological counseling.

In deciding that the young man could sue, the court defined intentional infliction of emotional distress as follows:

one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.

What are the key takeaways?

First, the conduct must be intentional or reckless.

Second, the conduct must be extreme and outrageous.

Third, the distress suffered must be severe.

People often do things to cause emotional distress in others.

However, unless the conduct is extreme and outrageous, intentional, and unless the distress produced is severe, a person wishing to sue is going to have a difficult time prevailing.

Of course, it’s unlikely that anybody who engages in the type of conduct I’ve described will have insurance to cover such bad behavior.

Consequently, the person who obtains a judgment against another person for intentionally inflicting emotional distress may have difficulty collecting on that judgment.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Bystander Witnesses a Loved One Suffer a Severe Injury

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who was told her husband was seriously hurt at work.

When she got the call she was across the street from the work site. When she got to the work site ambulance personnel were attending to her husband, and a medivac helicopter was landing. She tried to speak to her husband but he was incoherent. There was blood all over his shirt and his leg was bent at a terrible unnatural angle.

She wanted to know her legal rights.

In a past episode, we discussed the availability of damages for negligent infliction of emotional distress.

Decades ago in Indiana, the path to obtaining emotional distress damages was narrow. To obtain such damages a plaintiff had to prove:  1) an impact to the plaintiff; 2) that causes physical injury to the plaintiff; 3) that in turn causes emotional distress.

This was known as the impact rule. And, it was very difficult to meet.

Under the old impact rule, the caller would have no case for the distress she experienced in seeing her husband hurt. Why? Because she was not directly physically impacted herself. She was just an observer.

In the last 25 years, Indiana court decisions have trended in the direction of allowing recovery of damages for emotional distress in circumstances that never would have been permissible under the older and stricter impact rule.

Now an emotional distress damage claim is available where a Plaintiff witnesses the serious injury or death of a loved one.

Here is the exact language from a key court decision on the subject:  -[W]here the direct impact test is not met, a bystander may nevertheless establish “direct involvement” by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant’s negligence or otherwise tortious conduct.

Clearly, the caller’s circumstances fit the court test required to make a negligent infliction of emotional distress claim.

Keep in mind, if the caller had phoned our office 25 years ago and relayed the same facts, we would have had to report that it would be unlikely that she could succeed in bringing a negligent infliction of emotional distress damages claim.

In fact, we did get a call from someone 30 years ago involving a medical malpractice claim for emotional damages. At that time we had to tell the caller he had no claim.

Today the same caller would have a claim.

Here are the facts of that call. The caller went to the ER. They took blood. The doctor came back and told him he had only a week to live. The next day the doctor came in and said there was a mistake reading the blood test and the caller was going to be fine.

About 15 years after that call Indiana courts ruled that a mother who was not accurately told of fetal blood test results that indicated severe birth defects, leading to the delivery of a severely handicapped baby that died weeks after birth, could recover emotional distress damages due to her doctor’s failure to correctly report fetal blood test results.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

In Rare Cases, Attorney Fees Can Be an Element of Damages

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

When people sue in court normally each party pays their own attorney fees.

This means that if a plaintiff files a lawsuit the plaintiff must bear the cost of their own attorney. Win or lose.

The same is true for the defendant.

There is an exception however in Indiana if the lawsuit filed is seeking damages for an adult wrongful death.

Indiana law says that attorney fees are an element of damages if a plaintiff’s estate pursues and wins an adult wrongful death lawsuit.

In other words, in Indiana, the estate may recover the cost of pursuing the case if the estate wins in court, and the costs it may recover include the cost of hiring an attorney to pursue the action.

Say an estate is opened by a widow to sue for the wrongful death of her husband. Say the estate wins at trial. After being successful at trial, the estate can petition the court for an order compelling the defendant to pay the estate’s attorney fees and other costs associated with going to trial.

The only reason this is permitted is because there is a specific statute that permits attorney fees to be recovered in wrongful death estate cases for adults. If you think this is a great benefit, it is not.

The same statute greatly restricts the other damage elements that can be recovered in a wrongful death situation. For example, the estate cannot recover for the pain and suffering experienced by the deceased.

But how are attorney fees calculated in this situation?

Typically a plaintiff’s attorney proceeds on a contingent fee basis.

But when an estate is seeking a recovery of attorney fees, the estate can submit evidence of the reasonable hourly rate for the attorney handling the case and submit evidence of the number of hours put in by the attorney handling the case.

Proof as to the value of attorney fees may require expert testimony.

This testimony may come from an attorney who has nothing to do with the case, who testifies in court as to the reasonable value of the services rendered to the estate by the attorney who handled the trial for the estate.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Disabling Injuries Can Impact Earning Capacity

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

If a person suffers a long-term disabling injury, it becomes important to understand the negative impact the injury will have on their capacity to earn a living.

The federal government collects information about the impact of disabilities on the ability to work. The information is cataloged in tables on workforce statistics. Many businesses rely on such information including insurance carriers.

Not surprisingly people who experience a disabling injury do not participate in the labor market to the same extent as do able-bodied persons. Their lack of participation is not because they don’t want to participate, it’s because they qualify for fewer jobs.

Also not surprisingly, those who actually do find a job that will enable them to work within their medically stated work restrictions, experience lower earnings.

Let’s discuss an example.

A person disabled in an accident may be told by the doctor that they must take a job that keeps them sedentary for most of the day.

Before the injury incident, that now disabled individual was working full-time on a factory assembly line.

On the assembly line, they were making $50 per hour in part due to a well-negotiated union contract.

Following their injury they ask to go back to the assembly line, but they are told that there is no place on the assembly line for someone who must remain seated the entire work day.

The number of jobs now obtainable by the person disabled in the accident is now very limited.

They are foreclosed from doing the high-paying assembly line job.

Because they need to earn some income, they keep looking and they find a job where they sit at a cashier counter at a convenience store. They are very thankful to get the job, but it only pays them $12 an hour.

But pay is not the only benefit of working.

When the person worked on the assembly line they had a pension benefit, they also had paid health insurance, and they got five weeks vacation paid every year.

Not only does the sedentary cashier clerk job, pay less than ¼ the amount they were earning pre-injury, but now they have no pension benefits, no health insurance benefits, and no paid vacation.

Also, since their income is lower, the amount that social security will pay them at retirement is less.

For a young person a loss in earnings capacity, and loss in benefits, can add up to hundreds of thousands if not millions of dollars, over a lifetime.

The options for the person who is suddenly thrust into a job market where they must remain sedentary are also limited by their educational background.

In other words, there are many more sedentary jobs for people who have college degrees. If the person suffering a disabling injury has only a high school degree, the number of jobs open to them within their medical restrictions might be quite limited.

So how do attorneys explain to juries the full ramifications of a disabling injury?

Sometimes it is necessary to call as a witness an economist who can make calculations in detail so as to make clear the real loss flowing from a disabling injury.

These experts quantify the preinjury annual earning capacity and calculate the preinjury work life expectancy. Then they quantify the post-injury annual earning capacity and the post-injury work life expectancy.

You might be thinking that the work-life expectancy of a person won’t change just because of a disabling injury, but there actually may be a great change in work-life expectancy.

Where a medical doctor limits someone to sedentary work, they may also be able to state that due to the injury, the person will no longer be able to work until age 70, but rather will need to retire at age 60.

A lifetime loss can be complicated to calculate. But once you understand the factors that could affect the calculation most people called to serve on a jury will have no difficulty understanding the concept.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”