Colorado Trial Practice Blog : Colorado Injury Lawyer & Attorney : Mac Hester : Personal Injury, Auto Accident, Medical Malpractice : Serving Denver, Colorado Springs, Aurora

Most people don't know what a lawsuit looks like, and that may be a good thing. But for those curious to see what a lawsuit (the complaint)  actually looks like,  I decided to post an example here. It's a simple auto accident injury form complaint for Colorado District Court (The caption in this example form is different from an actual complaint caption; it has been simplified). Of course, this is just an illustrative  form and should not be used "as is" in any particular case. This complaint involves one Plaintiff and only two Defendants and only three claims for relief, so it's pretty simple. But don't let the simplicity fool you, seemingly simple cases can involve complex legal considerations that are not necessarily visible in the complaint. An attorney should still be retained to draft a complaint specifically tailored to the individual case.

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Med-Pay insurance pays for medical expenses incurred as a result of auto accidents. Your Med-Pay insurance covers the driver and passengers in your covered vehicle but does not cover the occupants of the at fault driver’s vehicle. Med-Pay coverage is essential if you do not have health insurance. Med-Pay is highly beneficial even if you do have health insurance, as Med pay covers medical expenses that are often not covered by health insurance and also may be used to pay health insurance co-pays and deductibles.

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An oft stated maxim in litigation is, “Relevance for purposes of discovery (e.g., interrogatories, requests for production) is different from relevance regarding admissibility of evidence at trial.” And sometimes the proponent of that maxim also adds that the admissibility of the requested evidence is not a consideration in discovery. That is where the proponent would be wrong.

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 www.hoggattlaw.com

Fort Collins Personal Injury Attorney Mac Hester offering representation in auto accident, traumatic brain injury, carbon monoxide poisoning, burn injury, and personal injury claims serving Fort Collins, Loveland, Windsor, Greeley, Boulder, Louisville, Longmont, Brighton, Thornton, Westminster, Aurora, Arvada, and Denver.

 

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Your client's auto crash injury medical bills were paid by the client's employer's health insurance. Your client aks: "My health insurer says that it is entitled to 100% reimbursement from my settlement. Can they do that?"

Indeed, can they do that?

If you're giving one word answers to that question then contact your malpractice carrier. Whenever I get that question I have to psych myself up to deliver the ERISA lecture as well as to prepare the client to receive it. I won't deliver the ERISA lecture here, but I will give a synopsis.

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Most attorneys and judges don't understand negligence per se. They treat it the same as negligence; i.e., at trial, they talk about the "reasonable person" and the "reasonable care" standard of liability with no differentiation between negligence and negligence per se. But the reasonable person/reasonable care standard does not apply to many negligence per se claims. Why?

Because the standard of care in a negligence per se claim based on a statute is the standard of care contained in the statute. And, the standard of care is often not the reasonable person standard.

Take, for example, C.R.S. 42-4-702 (left turn statute): "The driver of a vehicle intending to turn left within an intersection...shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection...."

The left turn statute does not contain a standard of reasonable care.

Consider, on the other hand, C.R.S. 42-4-1402 (careless driving statute): "Any person who drives any motor vehicle, bicycle, or motorized bicycle in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is guilty of careless driving."

The careless driving statute does contain a standard of reasonable care.

So how should you present (or exclude) evidence and law on a negligence per se claim that doesn't have a reasonable care standard?

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Carl von Clausewitz' On War, published posthumously in 1832, is THE seminal Western exegesis of war and military strategy and was the basis for Western military teaching and the conduct of war from its publication up until at least 1989, when the U.S. Marines adopted an official doctrine of warfighting largely based upon the priniciples of Sun Tzu's Art of War and U.S. Air Force Colonel Boyd's "OODA Loop." The crux of On War is attrition warfare as compared to the maneuver warfare of Art of War (but this is, of course, grossly oversimplified).

The U.S. invasion of Iraq is an interesting application (misapplicaiton) of the principles of the Art of War and an ignorant rejection of core principles of both On War and the Art of War. Defense secretary Rumsfeld planned for, and achieved, a quick military victory, but did not plan for, and did not achieve, stability and political victory. General Shinsheki's call for hundreds of thousands of troops, classic attrition warfare of Clausewitz' time, also was not the correct strategy. Had Clausewitz and Sun Tzu been consulted, both would have counseled President Bush to not invade Iraq. But the Iraq war is an article for another day.

The 10 principles that I have gleaned from On War are presented below.

 

 

 

 

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1000-500 B.C.  Siddhartha Gautama - the Buddha - is born in India.

Siddhartha announces the Four Noble Truths: (1) Life is suffering; (2) Suffering is caused by desire; (3) Desire can be extinguished; (4) By the Eighfold Path.

The Eightfold Path: (1) Right Understanding; (2) Right Purpose; (3) Right Speech; (4) Right Conduct; (5) Right Livelihood; (6) Right Effort; (7) Right Alertness; (8) Right Concentration.

Real or Imagined Schools of Buddhism

Mahayana - the "Greater Vehicle." A reform movement? Oversimplification: Liberation for everyone. "Bodhisattvas" delay their own nirvana to help others attain nirvana. Present day China, Japan, Korea, and Tibet.

Hinayana - the "Lesser Vehicle." A pejorative term coined by Mahayanists? No longer a "politically correct" term. School no longer exists? Oversimplification: "Arhats" attain their own nirvana.

Theravada - a non-Mahayana school based upon the Pali Canon, the earliest recorded teachings of the Buddha. Present day Thailand, Cambodia, Burma and Laos.

500 A.D.           Bodhidharma brings Buddhism to China from India.

600-700 A.D.   Zen develops as a school of Buddhism in China.

The Rinzai and Soto sects of Zen arise. Rinzai oversimplification: Hard, illogical, spontaneous, no book learning required (but lots of koans). Soto oversimplification: Quiet, conservative, lots of sitting meditation.

1200 A.D.        Esai brings Rinzai Zen to Japan from China. Dogen brings Soto Zen to Japan from China.

Zen flourishes with the Samurai caste, the "Bushi." Zen is attractive to the Bushi because it is existential, doesn't require loyalty to a higher power - which might interfere with loyalty to their lord or shogun, and can easily be incorporated into their martial arts training. 

Fort Collins Personal Injury Attorney Mac Hester

 

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John Minford's translation of the Art of War, Penguin Books 2002 (ISBN 0-670-03156-9(hc.); ISBN 0 14 04.3919 6 (pbk.)) is my favorite translation. Minford says that the Art of War is "beautiful and chilling." The same can be said of his translation, a portion of which (Chapter 5) is presented below. However, in order to save space, the excerpt is regrettably not presented in Minford's poetic structure. It is still beautiful and chilling nonetheless. Continue Reading...

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