Article by Rex Curtis Bush,  Utah attorney at Law, Member Utah State Bar since 1984.  Juris Doctor (law degree) from University of Utah College of Law, 1983.

Consider first, why do you want to become a Utah attorney?   Is it for prestige?  Money?

Go to court and watch some Utah attorneys in action.  Remember that many Utah attorneys don’t go to court at all so you’ll want to know how they spend their time.

Typically, lawyers spend time reading, talking on the phone, writing and meeting with clients, other lawyers, paralegals and support personnel.  Sometimes they just sit and think.  I do a lot of that.  Usually while I’m staring out the window.

Visit a law school.  Observe the law students.  Notice the extremely large books they are reading.  Do you like reading big books?  If you don’t like to read,  law school will be extremely difficult and unpleasant.

According to a survey of 800 lawyers conducted by the American Bar Association in 2006, fully 80 percent surveyed said they were proud to be attorneys, and 81 percent said they find their practice intellectually stimulating.

There were times when I did not enjoy being a Utah attorney and when I searched for another career path but today, after nearly 25 years as a practicing attorney in Utah, I find my job fun, satisfying and materially rewarding.

Once you are satisfied you will like your work as a Utah attorney it is time to focus on the specifics of qualifying for the job.

To become an attorney in Utah you need to pass the Utah Bar Exam.  Passing the Bar exam is not difficult if you study and are well prepared for it.  The trick is qualifying to take the exam.

To be able to “sit for the bar exam” you need to graduate from one of the approximately 192 law schools that are approved by the American Bar Association.  In Utah there are two:  BYU and the U of U.  Which means, of course, that the other 190 schools are out of state.

Getting into an approved law school can be the biggest challenge to becoming an attorney in Utah.  hallenge.  Acceptance is based on your grade point average (gpa) in college (most schools require you to have or be close to getting a bachelor’s degree) and your score on the Law School Admission Test (LSAT).

At Harvard the lowest gpa at Yale Law School was 3.83 and the lowest LSAT score was 170 (98.4 percentile).  At the other end of the spectrum was Southern University where the lowest gpa was 143 (20.4 percentile.)  We have Utah attorneys who have graduated from nearly every one of the 192 approved law schools.

If you are determined to become an attorney in Utah your best possible strategy is to work your ass off in college and get your best possible grades because you don’t know yet what you will score on the LSAT.  Studying something you like will help.  Good grades in majors like engineering or computer science don’t rank any higher than those in Spanish or Elementary Ed.

There are special classes that promise to help you prepare for the LSAT.  I did not take one but my son-in-law did and I believe he found it helpful.

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Q.  Someone speeding down the turning lane, to avoid stopped traffic hit me and took off the whole front end of my car as I was pulling out into a space a driver

had left me. we were stopped to look with just our nose out and he hit us. the officer said it was my fault.   But he was speeding and not paying attention. and don’t you have to be within a certain footage of your turn to be driving in that lane anyway? and isn’t there something along the lines of driving for the conditions of the road?..there was heavy traffic and he was speeding past all the stopped vehicles very far from his turn.

A.  Drivers are not supposed to travel in the “median” (or the “parking strip”) but anyone who has been driving for more than a week knows that they do. So when you failed to look before pulling into the path of the other driver, you were negligent and, according to the investigating officer, guilty of a traffic offense. The other driver should have been cited also. But since you were both negligent it will be difficult for you to get the other driver’s insurance to fix your car.

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Q.  I was hit by a car while riding my bicycle at night – it was dark, and I had a flashing light on the front of the bike. The driver slowed down, but did not stop at the stop sign. Broken tailbone, lots of skin abrasions and destroyed bike, clothes, bike accessories etc. What steps should I take – is a lawyer necessary?

A.  Don’t be in a big hurry to settle the case. If the person who hit you was a private person (i.e. not working for state, local or federal government at the time of the accident) then you have four years to settle the claim or file suit.

Unfortunately, a broken tailbone will take some time to heal. But, you will also want to be sure you know the full extent of your injuries before settling. Once you settle, you cannot usually reopen the case later.

As a bicyclist you are considered a pedestrian and therefore your medical bills are covered under the PIP (Personal Injury Protection) coverage of the car that hit you. Utah policies require an owner to carry at least $3000 in PIP medical coverage.

Your lost wages are also covered up to the limits of the car’s policy.

You may also pay someone up to $20 per day to perform household tasks you are not currently able to perform.

When you receive payment for your bike and clothes do not sign anything.

An attorney could be helpful to you in making sure that all your injuries are identified, diagnosed and treated. And that the settlement is a fair one.

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The Utah tort threshold applies only to car accidents.   So, if you slipped on a sidewalk that had not been timely shoveled,  then you don’t need to worry about it.

Just automobile accidents.  That’s it.

To make a claim for “general damages” (I’ll explain this term a little further on) after a car accident you have to meet one of the following criteria.  This is known as “meeting threshold”.  The criteria are:

1)  death:

2)  dismemberment:

3)  permanent disability or permanent impairment based upon objective findings;

4)  permanent disfigurement; or

5) medical expenses to a person in excess of
$3000;

Before getting into detail about the categories, I think it would be helpful to explain general damages.

General Damages

Damages means money.  Courts can’t restore your health or your lost limb but they can order the wrongdoer (known as a “tortfeasor”) to pay you money.   In an injury case the two most commonly occurring kinds of damages are:  special damages and general damages.  Special damages are easy to put a number on.  They include medical bills and lost income.  General damages are a little tougher to quantify.  They encompass what is commonly known as “pain and suffering”.   They would include not only pain but also disability and disfigurement.  The injury to your relationship with a romantic partner (known as “consortium”) is an example of general damages.

Since the Utah tort threshold applies only to claims for general damages you are not precluded from recovering lost income or medical expenses, even if you don’t meet one of the following five threshold criteria.

Death

Death of a loved one caused by the negligent act of another qualifies you to make an injury claim for general damages if you are an heir.   You are clearly an heir if you are a legally recognized child.   On the other hand, if a minor child dies, his parents are his heirs.

Dismemberment

Only the most dyed-in-the-wool conservative would reject a monetary award for someone who lost a limb in an accident.  Actually, conservatives  reject monetary awards only for other people.  When they get hurt it softens their political positions.  Trauma can be an ideologically-altering experience.

Permanent disability or impairment;

This criteria is most often met by a permanent impairment rating.   Sometimes an injured person’s medical expenses can amount to less than the $3,000 threshold requirement.  But, if permanent injury is present, an impairment rating can put him over the top.  Doctors use an important sounding book to assign these ratings.  It’s called “The American Medical Association Guide to the Evaluation of Permanent Impairment”.

Was I right?  It sounds important doesn’t it?

Anyway, that’s the book doctors are supposed to use to assign an impairment rating.  And, if they use the book, and the rating assigned is based on objective factors then the rating will qualify an injured person for monetary compensation.   Some doctors don’t feel comfortable assigning an impairment rating.  If that happens to your doctor then you need to find someone who is comfortable.  Preferably someone who has done a lot of impairment ratings.

There is also something called a “functional capacity evaluation.”  It focuses on what you can or can’t do because of your injuries.  A disability rating could be based on that.

Disfigurement

An ugly scar on the face would be a good example of this criterion.  For women this is pretty clear cut.  Women want to be pretty and scars mar looks.  For a guy it can be a little more complicated.  Sometimes scars actually make guys more attractive.  I’m not talking about a horrific shocking scar over a large surface of the body.  I am talking about a more or less simple scar that a guy might brag about afterward.  However, even if a guy is proud of his scar he can still make a claim for monetary compensation.

Leg scars will be worth more money for women that for men.  Women like to show their legs.  Men like to look at unscarred female legs.

On the other hand, unless the scarring is horrific in nature, it is my opinion that a Utah jury will not award much for a visible scar on a man’s leg.

Medical expenses in excess of $3,000;

Though not explicitly stated in the “threshold” statute it is commonly understood that the medical expenses incurred must be both reasonable and necessary.  Reasonable refers to the cost of the medical care.  If your chiropractor charged you $10,000 for a series of treatments you might run into opposition at trial.  The insurance defense lawyer may argue the charges were not reasonable.   The Utah State Relative Value Study establishes what is reasonable.  What most  doctors of that specialty are charging is the key, and, specifically, if 75% of those doctors are charging less then the charges are considered unreasonable.

Necessary refers to medical necessity.  Did you really need the treatment?  Another way of saying this is “was it medically necessary?”  Your doctor may believe it was necessary but another doctor, especially one hired by an insurance company, my have an opposite opinion.

You may have noticed that $3,000 is the required minimum amount of PIP medical coverage under Utah law.  Because the PIP medical minimum and the threshold medical minimum are both $3,000 confusion has arisen.   PIP medical is available in higher limits ( and I strongly suggest you take advantage of this as, for a few more dollars per month, you can get significantly more coverage).  Anyway,  sometimes an injured person with, say, $10,000 in PIP medical will ask “do I need to use up my PIP to be eligible to make a claim?”

The answer to that question is simple: NO.  No, you do not need to use up your higher than normal PIP limits in order to make a claim.  The threshold number is $3,000.  That number does not change even if you benefit from higher PIP limits.

Here’s a way to remember it:  you meet threshold; you use up PIP.   But you don’t have to use up your PIP to meet threshold.  You just have to meet threshold, which for the medical expense criterion is $3,000.

Exceptions to the Utah tort threshold

1)  Non-automotive related  injuries.   The threshold applies only to car crashes.  I mention this again here for those of you who entered the discussion past the beginning point.

2)  Uninsured motorist cases.  The Utah tort threshold was created in connection with Utah No-Fault law (also known as PIP or Persona Injury Protection).  The basic idea is:  you carry car insurance which pays for your medical bills up to a certain point; then, if you are injured, you don’t have to sue to get your bills paid.  However, and this is a big HOWEVER.  If you don’t have car insurance then you didn’t follow the rules of the Utah No-Fault Statute so you don’t get the protection it envisioned.  Therefore, you could be sued (even though you won’t be because you are uninsured and therefore probably broke) by someone who did not meet one of the criteria of the tort threshold.

That’s a little convoluted I know and probably TMI (too much information, for those of you without teen agers) but what it means is:  If you are injured by a negligent but uninsured motorist then you don’t have to meet the Utah tort threshold to pursue a personal injury claim for general damages.  Of course, the claim will be against your own insurance coverage not against the at-fault party (he’s broke, remember).   This is one time when it is to your advantage to be hit by an uninsured motorist.  Because, if your medical bills are, say, $2,000 and you are all healed up you can still make a claim for general damages and your insurance company will probably compensate you.

3)  You were visiting here or just moved to Utah

For the same convoluted reasons explained above, you don’t have to meet threshold if you were injured while on a visit to our great state.  And, if you recently relocated here and have lived here less than 90 days with the insurance coverage from your last state then, once again,  the threshold rules don’t apply.

If you want to read the text of the law for yourself you can find it at here.

Also, for those who want even more information about the Utah tort threshold (and, I must say, I admire your diligence) the Utah Code Annotated contains the law in print format along with small case summaries (called annotations) of Utah Supreme Court desisions that have dealt with this law.   You should be able to find a set at your local library.

If you have trouble (and with your brand of determination I doubt you will) ask the librarian to help you find Code section 31A-22-309.

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If you give a statement to an opposing insurance adjuster while you are in the hospital you can cancel it in writing within fifteen days of your discharge.  The following Utah Code Section gives the details.

78B-5-813. Statement of injured person — When inadmissible as evidence.

Except as otherwise provided in Sections 78B-5-812 through 78B-5-816, any statement, either written or oral, obtained from an injured person within 15 days of an occurrence or while the person is confined in a hospital or sanitarium as a result of injuries sustained in the occurrence, and

which statement is obtained by a person whose interest is adverse or may become adverse to the injured person, except a peace officer, is not admissible as evidence in any civil proceeding brought by or against the injured person for damages sustained as a result of the occurrence, unless:

(1) a written verbatim copy of the statement has been left with the injured party at the time the statement was taken; and

(2) the statement has not been disavowed in writing within 15 days of the date of the statement or within 15 days after the date of the injured person’s initial discharge from the hospital or sanitarium in which the person has been confined, whichever date is later.

(Emphasis added by blogger)

Renumbered and Amended by Chapter 3, 2008 General Session
Download Code Section Zipped WordPerfect 78B05_081300.ZIP 2,122 Bytes

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The police officer said you were partly at fault, can you still make a claim?  Let’s say you were speeding, just a little, say five over, and another driver pulled out in front of you and you were injured in the crash.

Principles of Utah accident law state that you can still make a claim for your personal injuries unless your fault is equal to the other driver’s.  If you were each 50% at fault then neither can make a claim against the other and you each pay for your own loss.  That includes the damage to your car.

However,  let’s say our slight degree of speeding amounts to, say 10% of the total fault.  In that case you can claim 90% of the repair cost of your car and 90% of the value of your injuries.

It can be tricky to sort it out and sometimes, for this particular area of Utah accident law,  you need a special expert called an accident reconstructionist.

The applicable section of Utah accident law is Utah Code Section 78B-5-818. Here is is for your eyes in full at the Utah Personal Injury Attorney Blog:

78B-5-818. Comparative negligence.
(1) The fault of a person seeking recovery may not alone bar recovery by that person.
(2) A person seeking recovery may recover from any defendant or group of defendants whose fault, combined with the fault of persons immune from suit and nonparties to whom fault is allocated, exceeds the fault of the person seeking recovery prior to any reallocation of fault made under Subsection 78B-5-819(2).
(3) No defendant is liable to any person seeking recovery for any amount in excess of the proportion of fault attributed to that defendant under Section 78B-5-819.
(4) (a) The fact finder may, and when requested by a party shall, allocate the percentage or proportion of fault attributable to each person seeking recovery, to each defendant, to any person immune from suit, and to any other person identified under Subsection 78B-5-821(4) for whom there is a factual and legal basis to allocate fault. In the case of a motor vehicle accident involving an unidentified motor vehicle, the existence of the vehicle shall be proven by clear and convincing evidence which may consist solely of one person’s testimony.
(b) Any fault allocated to a person immune from suit is considered only to accurately determine the fault of the person seeking recovery and a defendant and may not subject the person immune from suit to any liability, based on the allocation of fault, in this or any other action.

Renumbered and Amended by Chapter 3, 2008 General Session

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Here is discussion of a very important study that has implications for Utah attorneys and their clients.

This recent study has shown that, for plaintiffs i.e. the person who files the claim, settling is better than going to trial.

Here are excerpts from an article by Jonathan Glater in the August 8, 2008 edition of the New York Times which discusses this groundbreaking study.

“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.

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Clients are the people who make it possible for us lawyers to earn a great living and have a great life.

Without clients we would have to seek another way to earn a living.

Clients make it all possible.

It’s easy to forget this.  We sometimes get wrapped up in the legal research, or the negotiating or stategy in the lawsuit.

Without the client, though, all that is meaningless.

With a nod to Hollander Consultant’s, who provided the starting content for this in its General Staff Policy Manual, here is a slightly modified version that I’ve entitled “What Is A Client?”  I’m rewriting it here to remind me of its reality.  Because I’ve forgotten it at times and because, deep down, I believe it is true and want to remember it always.

In the hustle bustle of the workday, with all the concerns, responsibilities and pressures, it is sometimes easy to forget the single most important factor of the practice–the client and the service you are there to deliver that client.  In everything you do, try always to remember the following.

A CLIENT IS THE MOST IMPORTANT PERSON IN ANY PRACTICE.

A CLIENT ISN’T DEPENDENT ON US.  WE ARE DEPENDENT ON HER.

A CLIENT ISN’T AN INTERRUPTION OF OUR WORK.  SHE IS THE PURPOSE OF IT.

A CLIENT DOES US A FAVOR WHEN SHE COMES IN.  WE AREN’T DOING HER A FAVOR BY WAITING ON HER.

A CLIENT IS PART OF OUR BUSINESS–NOT AN OUTSIDER.

A CLIENT ISN’T JUST MONEY IN THE CASH REGISTER.  SHE IS A HUMAN BEING WITH FEELINGS, LIKE OUR OWN.

A CLIENT IS A PERSON WHO COMES IN TO US WITH HER NEEDS AND WANTS.  IT IS OUR JOB TO FILL THEM.

A CLIENT DESERVES THE MOST COURTEOUS ATTENTION WE CAN GIVE HER.  SHE IS THE LIFE-BLOOD OF THIS PRACTICE.  SHE PAYS OUR SALARY.

WITHOUT THE CLIENT WE WOULD HAVE TO CLOSE OUR DOORS.

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Here’s an article from the Ogden Standard Examiner about the AC/DC case that I worked on back in the 1990s.

AC/DC Return to Utah

AC/DC returns to Utah 10 years after tragedy
Venues take precautions to protect fans, but more work needed, expert says

Friday, April 06, 2001

By MARK SAAL
Standard-Examiner staff

When AC/DC takes the stage Thursday evening, most everyone agrees, there’s little chance of a repeat of the tragedy that occurred the last time the heavy-metal rock band came to Utah.

On Jan. 18, 1991, three teenagers were killed at an AC/DC concert in the old Salt Palace Acord Arena. Fourteen-year- olds Curtis Child of Logan and Jimmie L. Boyd of Salt Lake City, and 19-year-old Brigham Young University student Elizabeth Glausi were crushed to death when the crowd in front of the stage surged forward just after the band began playing.

Steve Harms, director of marketing for the E Center of West Valley City, where next week’s concert will be held, says the two events are completely different animals.

To begin with, it’s not the same kind of seating setup. Ten years ago, the configuration on the arena floor was “festival seating,” meaning general admission, standing- room only. One concert safety expert calls festival seating “the most dangerous crowd configuration,” since audience members are competing for the same space.

Next week, all seats throughout the arena will be reserved.

“A lot of things have been done over the years to alleviate something like that (the 1991 tragedy) from happening, but in this case you alleviate it by putting all the people on the floor in assigned chairs,” Harms said.

Harms also said the simple passage of time has affected the type of crowd he expects to see: “I mean the audience is going to be different.” he said. “Those people are all 10 years older now.”

Harms’ boss, E Center general manager Kevin Bruder, said his venue’s primary concern is to provide a safe, comfortable environment, and he’s confident that will be delivered at next week’s show.

“So far, everything we’ve seen on AC/DC has been wonderful,” Bruder said. “They’ve had no incidents in the past 10 years. Everything points to the fact that the show is going to be successful. … We take pride in being well-prepared, and we have a good understanding of what’s happening out there.”

Safety still an issue
But just because all parties think next week’s AC/DC concert in West Valley will be safe, that shouldn’t be interpreted as a blanket statement that concerts today are safer than they were 10 years ago, according to one concert safety consultant.

Paul Wertheimer, owner of the Chicago-based Crowd Management Strategies, says rock concerts are still an accident waiting to happen.

Wertheimer has been called “Rock’s Ralph Nader” and “The Marshal of the Mosh Pit.” He was the public information officer for the city of Cincinnati back in 1979 when 11 people were trampled to death at a Who concert. He was subsequently selected to head a concert safety task force there and wrote a landmark report.

From there, Wertheimer found it impossible to escape concert safety issues. From about 1984 on, whenever a problem dealing with concert safety arose, someone — the media, a lawyer, citizens’ groups — would seek him out.

In the early 1990s, Wertheimer finally decided somebody had to start speaking up. He now runs Crowd Management Strategies, consulting on concert safety problems around the world.

The problem
The problem, Wertheimer says, is that there are no industry-wide guidelines to address public safety at concerts.

Julie Herrick, spokeswoman for the International Association of Assembly Managers in Coppell, Texas, said her organization is doing just that. “We’re in the process of developing some guidelines,” she said.

However, Wertheimer becomes fairly apoplectic when he hears that.

“They’ve been “in the process’ for 20 years,” he said. “Just like they’ve been in the process of creating a database. … Five years from now, you can call them and they won’t have any standards. They’ll still be in the process.”

Wertheimer says the industry is playing “Russian roulette on safety.”

“The concert industry as a whole is like the tobacco industry,” Wertheimer said. “They’re in a state of denial. It’s an industry that learned nothing from Salt Lake City, or from the Who in Cincinnati.”

Banning festival seating
Wertheimer says the good news is that some arenas and venues are doing a good job of ensuring safety on their own.

Despite the deaths, he still holds up Salt Lake City as an example of how concert safety can work. In 1982, the city — reacting, in part, to the Cincinnati deaths — passed an ordinance banning general admission seating in arenas and concert halls with a capacity of 2,000 or more.

Unfortunately, he says, that ban was ignored in 1991.

“As a result of ignoring that festival-seating ban, three kids died,” Wertheimer said. “Had they upheld the festival-seating ban, those young children would still be alive today. Can safety laws work? Yes, they can.”

Wertheimer was hired as an expert witness by R. Craig Clark, a lawyer representing the family of the Logan teen killed at the 1991 AC/DC concert. But before Wertheimer could be deposed, the parties in the lawsuit settled. Families of the other two victims also settled lawsuits.

The E Center’s Bruder says that his venue does have festival seating for some shows, and that many of the pitfalls of festival seating can be avoided with adequate preparation.

Bruder said the key is a combination of appropriate staffing and training, limiting the number of tickets on the floor, keeping other fans from sneaking down onto the floor — and knowing what shows will work as general admission and which should be reserved seating.

“It just takes a heightened awareness, really, and just doing a tremendous amount of research as far as what the tour history is,” Bruder said.

Time to change
Wertheimer said progress is being made in the area of concert safety, but it’s not occurring in the United States.

Right now, he said, Europe is taking the lead in establishing standards, rules and regulations for concerts. He wants to see the birthplace of rock ‘n’ roll do more.

“We’re now 49 years old,” Wertheimer said of the rock concert. “It’s a mature industry, we know the right things to do, we’ve got the resources and the know-how. We could solve the problem literally tomorrow if we wanted to do it.”

But Wertheimer said some in the industry don’t want to admit there’s a problem — saying that he inflates his figures and that the incidences of death are much lower than he claims.

But, Wertheimer says, even one preventable death is one too many.

“Why should anyone die at a rock concert?” he asked. “It’s a musical event, it’s not going to Vietnam. Yes, most times nobody is killed at a festival-seating concert, but is that something to brag about? “Hey, we had a concert and nobody died!’”

Source : w w w . s t a n d a r d . n e t

Stiff Upper Lip Tour Special

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My dad used to tell a story about a man carrying a two by four on his shoulder.  As he rounded a corner he  bumped in the face a man coming from the opposite direction.   When the injured man complained the two by four carrier said “I have a right to carry this two by four on my shoulder.”  To which the other man replied  “your right to carry that board  ends where my nose begins.”

I’ve always remembered this story and perhaps it explains why my favorite subject at the University of Utah College of Law Torts and why I love practicing personal injury law as a Utah injury attorney.

Note:  Torts are wrongful acts for which monetary compensation can be sought by the injured person.

People have rights.  Large corporations would like to deprive people of access to the courts because that way they could avoid responsibility for their own wrongdoings.

I get satisfaction from making sure people are fairly compensated and that their  injuries are fully diagnosed and  treated.

I love  practicing law because it is fun and it is fun because  it is an easy job compared to the other jobs I have done like working as a scraper in a cheese factory.

Practicing law is fun because it involves negotiating and writing and reasoning and thinking and reading which are things I love.  And it is fun to help people. I like helping people and making their lives easier and more fair and meaningful and achieving justice for all.

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