Category Archives: personal injury

Guest Post: Is Hands-Free Really Safer?

Posted on July 18, 2019 by Jon Rehm

On Monday I wrote about the legal problems associated with the hazards presented by GPS for professional drivers. Huntsville, Alabama attonrey Jeff Blackwell has agreed to let me re-publish his blog explaing why in-car devices like GPS are hazardous.

The Alabama Legislature has been debating bills that would prohibit the use of handheld devices like cellphones while driving. Last year, Georgia passed a similar hands-free law. Is hands-free safer? Will a hands-free law reduce needless car accidents and injuries in Alabama?

A National Safety Council public opinion poll indicates 80% of drivers believe hands-free devices are safer. Yet, safety experts remain doubtful. The Senior Director of the Transportation Initiative at the National Safety Council had this to say on the topic:

While many drivers honestly believe they are making the safe choice by using a hands-free device, it’s just not true.

The problem is the brain does not truly multi-task. Just like you can’t read a book and talk on the phone, you can’t safely operate a vehicle and talk on the phone.

A journalist asked the hosts of MythBusters the question. What did they do? They tested the issue with a driving simulator at Stanford University. The simulation involved 30 people driving in a busy, virtual neighborhood while talking on a cellphone. Half the drivers used handheld phones. Half talked hands-free. The results were amazingly similar. Only one driver passed the test in each group. Almost identical numbers crashed or drove the wrong way. The MythBusters conclusion:

It is no safer to use a hands-free device while driving than it is to use a handset.

I have mixed feelings on the issue. Do I believe hands-free is safer? Yes and no. Driver distractions are MANUAL, VISUAL and COGNITIVE. What are some manual distractions? Eating or drinking while driving. Reaching for items in the car. What are some visual distractions? Looking for items in the car. Watching an electronic device. Reading billboards (with their ridiculous clown lawyer ads). What are some cognitive distractions? Talking to passengers. Daydreaming. Feeling exhausted or fatigued. What makes handheld cellphones so dangerous? They involve ALL three types of distraction at the same time.

With a hand-free device, you reduce the manual and visual distractions while driving. I think that does increase safety. The problem is that many drivers don’t fully consider cognitive distractions. While most people realize that looking or reaching while driving diverts focus and attention, they tend to discount cognitive issues. Instead, they (wrongly) think they can multi-task. Many people are biased about their ability to multi-task. They wrongly believe they can safely concentrate on driving while mentally performing other tasks.

I think the Alabama Legislature should pass a hands-free law. It’s a start. If handheld devices are less accessible while driving, maybe some of the most dangerous activities will decrease. Maybe we won’t see reckless drivers surfing the internet with their phones while trying to drive. While the perception of hands-free safety is certainly greater than the reality, we should pass a hand-free law and carefully study accident statistics in the next few years.

Why I don’t mind my client’s using social media (most of the time)

Posted on July 8, 2019 by Jon Rehm

The idea of workers’ compensation fraud is embedded in the popular imagination and an evergreen mainstay of local news coverage — and of course social media.

Social media is a new wrinkle on the old chestnut of workers’ compensation fraud. Usually stories go something along the lines of:

“A Florida man who was receiving workers’ compensation benefits for a back injury was arrested after he posted about his “epic workout at Beast Mode Crossfit” where he “maxed out” on his “deadlift at 405” on Facebook.” (FTR Beast Mode Crossfit is a real gym, but it’s in Texas)

There is a lot wrong with this stereotype or trope besides my poor attempts at humor.

First of all employer and medical provider fraud is as prevalent, more costly, but less reported than employee fraud.

Second, injured workers have to go through all sorts of gatekeepers to get benefits such as insurance adjusters, defense lawyers and medical examiners in workers’ compensation case that either actively or passively assume their cases are somehow illegitimate or exaggerated.

But the inconvenient truth for plaintiff’s lawyers is that sometimes injured workers do post things on their social media accounts that hurt their cases.

That’s why some lawyers advise their clients not to have or not use social media accounts during litigation.

I don’t think that is practical or helpful for a lot of reasons.

Job and business opportunities – People find out about jobs through social networks. Those social networks have now moved online. It’s not unusual to see a “My company is hiring” post on Facebook. (There is a whole social network, Linked-In, that is geared towards these posts) If you are off of work and or looking to return to work after recovering from an injury that is the subject for a court case, then Facebook and other social networking sites may be helpful in finding work.

Many people also run home businesses or side businesses. Social media is helpful in promoting those businesses. Traditional want-ads have largely moved to social media as well. Sometimes injury victims will need to sell possessions to get by while a court case is pending.

Social connections – People with serious injuries are often unable to work for a period of time, so they lose the social connections of work. They tend to get lonely and unhappy. These unhappiness compounds the physical pain of an injury and anxiety over a court case. Social media is a way to maintain social connections and connect to people you don’t know in real life (IRL), but may share common interests. Those social media connections can be particularly important for people who may have relocated from another part of the country or immigrated from another country and may not know many people locally.

News and Entertainment – I read something on Twitter where some hipster-type tweeted they needed a show for background noise while they were on their phone. The combination of smart phones (a dated term) and social media means that people find entertainment by accessing social networks on their phone. Cable televisions and even streaming services cost money. But so long as you have phone service, you have a source of entertainment. Social media is also a free news source whereas news sources that require a subscription may be beyond the financial means of an accident or injury victim.

Social media may have been extraneous 10 years ago. In 2009, it wouldn’t be unreasonable to tell someone “Don’t go on Facebook while your case is open.” Many clients might not have even had an account.

But as a lawyer in 2019, if you tell a client not to use social media, you are telling them something like, “I don’t want you to interact with your friends, talk about sports, television shows, politics. I don’t want you sharing jokes, trying to run a home business or use a free service that could help you find work. I’m telling you this because there is a small chance you could ruin your case (and my fee) if you post something dumb.”

I still think lawyers should advise their clients about social media use. I don’t think there is anything unwise or unethical about advising clients to adjust privacy settings. I advise my clients to be careful on socail media I also think it’s smart to advise clients not use social media during a trial or deposition.

But I believe it’s impractical to tell clients not to use social media while they are involved in a claim or litigation.

Injury cases during a gender transition

Posted on February 21, 2019 by Jon Rehm

A gender transition adds another wrinkle to an injury case

A work injury or injury caused someone else’s negligence can cause many complications. But what happens when an injury case comes up during when the accident victim is involved in a gender transition or has changed genders?

Every injury claim is different. A gender transition raises some unique issues in an injury case, but those issues are manageable and need not hurt a case with good communication between an attorney and client.

Here are a few issues about representing transgender individuals in injury cases that have come up in my experience.

Why is a gender transition relevant to an injury claim?

In short, an injury claimant gives up a lot of privacy when they make a claim. The Rules of Civil Discovery give insurance companies a lot of power to go through a claimant’s medical history. Some studies have shown a relation to spinal fractures and the hormones used in male to female transitions. In a case involving a back injury involving a man changing genders, the insurer may try to pin the cause of a fracture on hormones used in a gender transtion rather than an injury.

Many injury claims involve either a mental injury or a claim for pain and suffering. These claims can open up discovery about a claimant’s mental condition. Some, but not all transgender individuals, suffer from gender dysphoria which is anxiety or mental distress over a person’s gender identity. Again if a transgender individual is claiming mental distress from an injury, an insurer may try to shift that mental distress onto the gender dysphoria rather than the injury.

But many people, whether transgender or cisgender, have some preexisting physical and/or mental health conditions that could complicate an injury claim. Transgender individuals just have some conditions that are unique to them.

Attorneys for insurance companies frequently ask injury victims if they have used another name in the past. This question is asked to discover things like previous accidents, medical care and experience with the legal system. It’s not unusual for women to have a maiden name and a married name. In the case of a person who changed genders, the prior names question can reveal the individual changed genders.

Protecting privacy and dignity in litigation

Just because an injury claimant loses a lot of privacy in litigation, doesn’t mean they lose all privacy. Questions, whether in writing or oral can not be “unreasonably embarrassing”. If question are unreasonably embarrassing, an attorney can move for what is called a protective order to limit questioning. Discovery in an injury case gives insurance companies access to all sorts of information. But not all information about an individual may be relevant in their court case An attorney can file a motion in limine to protect private details about a client’s life, like a gender transition, that might not be relevant to their claim from a jury.

In Nebraska and most states, motions in limine, may not be helpful to claimant’s in workers’ compensation cases because cases are heard by judges rather than juries. In other words, the finder of fact is going to know all sorts of things about a claimant that might not have anything to do with their work injury. In my experience, judges in the Nebraska workers’ compensation court do a good job of screening out irrelevant details in deciding cases. A gender transition may be of little relevance to a workers’ compensation claim.

The importance of a trusting attorney-client relationship

Transgender individuals have unique issues in injury cases, but like any other client a trusting attorney-client relationship is key to a good case outcome. Communications between a client and attorney are almost always confidential. Part of the reason for that privilege is that client’s need to tell attorneys things they wouldn’t tell their co-workers, friends or even family. When it comes to issues of gender identity and gender transition, a workers’ compensation or personal injury attorney needs to know about those issues early in a case so they can effectively advocate for their transgender client. As an attorney, I don’t want to find out for the first time at my client’s deposition that they are undergoing a gender transition Even routine matters like be kept up to date on a name change can help an attorney update medical releases so they can update medical records.

Effective advocacy in an injury claim isn’t just getting a good case outcome, it also means protecting the privacy and dignity of the individual during the litigation process. Transgender clients should feel comfortable communicating about issues with gender identity with their attorney, so their attorney can protect their interests during litigation.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Category Archives: personal injury

Guest Post: Is Hands-Free Really Safer?

Injury cases during a gender transition

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