By now, it’s likely that you’ve heard that Gwyneth Paltrow has been sued by a retired optometrist, Terry Sanderson, for personal injury. In the case, Mr. Sanderson claims that he suffered serious injuries, to include a traumatic brain injury, when Ms. Paltrow slammed into him while skiing. In response, Ms. Paltrow claims that it was actually Mr. Sanderson who struck him.
To be clear, we haven’t watched the entire trial, so we take no position on the outcome. But we believe this case is useful in considering your own Virginia accident case. Here’s five important things to think about:
Who’s at fault?
For every personal injury accident case, there’s two overarching issues for the jury to decide. The first is “liability” or who is at fault for the accident. The second is “damages” or what injuries and other consequences did you sustain as a result of the accident. Remember, no matter how significant your damages, if you can’t establish liability (that the defendant was at fault for the accident), you lose. As a Plaintiff, it is your burden to establish fault.
The issue of liability in Ms. Paltrow’s case is a great example of how complicated the issue of fault can be at trial. Here, Mr. Sanderson claims it was Ms. Paltrow’s fault, and she claims the opposite. This is indeed a “he-said-she-said” case. In our experience, juries have a difficult time settling these cases in favor of the Plaintiff without some independent, corroborating evidence.
In this case, Mr. Sanderson presented the testimony of Greg Ramone. Best we can tell, Mr. Ramone knew Mr. Sanderson before this crash and went skiing with him that day. And he testified that Ms. Paltrow slammed directly into the back of Mr. Sanderson while on the slopes, and then she immediately got up and left without even asking if he was OK.
So, how does Ms. Paltrow’s defense team contradict this witness? First, relationships matter. While we’ve been unable to locate a full cross examination of Mr. Ramone, it’s likely that that will dig into his previous relationship with Mr. Sanderson. And they will try to convince the jury that he must be lying because he’s friends with Mr. Sanderson.
If you’ve been in an accident here in Virginia, it will be vital that you can establish that the defendant was at fault for your accident. What’s more, under Virginia’s Contributory Negligence Laws, you have to establish that you didn’t contribute even just 1% to your own accident. If the defense can establish you were just 1% at fault, you lose.
It should also be noted that the defense in this case used “accident reconstruction experts” to defendant Ms. Paltrow. While beyond the scope of this article, Virginia typically prohibits this kind of testimony.
Often, injuries are invisible.
Among his claims, Mr. Sanderson asserts that he suffered a traumatic brain injury because of this accident. However, when you see him in court and when you see him testify, he looks well groomed, speaks articulately, and seems to understand all that is going on around him in the courtroom. Without question, the defense will try to use this to their advantage. After all, if he really suffered a life-changing traumatic brain injury, how could he even sit through this entire trial?!
The reality is that injury victims often suffer in silence. To the world around them, they look normal, they sound normal, and can do many of the things that “normal” people can do. However, particularly when it comes to mild Traumatic Brain Injuries, an injury victim can suffer devastating life effects that are hard for people to understand.
Indeed, we’ve represented countless folks that are hardworking, often very successful folks that, because of their brain injury, they’ve lost their “edge.” We’ve helped out lawyers, artists, educators, people in finance, etc. that were operating at the highest levels prior to an accident. But because of their injuries are no longer their former selves, and can no longer serve in their former roles. In fact, we’ve helped out folks that have went weeks and even months without realizing their own limitations until a friend, family member, or co-worker has had to tell them that things have changed.
This is why seeking treatment, and following through with that treatment, is so important after an accident. First, it maximizes your chances of fully healing. But second, any delays in treatment (or gaps in treatment), defense will argue proves that you weren’t really injured.
Witness “credibility” matters.
Trials are a weird thing. For at most, several days, a jury of random folks from the community come together, packed in a courtroom, make decisions about your life. Usually, they hear your tell your own story for a couple of hours. And during that story, you have to answer questions from an attorney who is trying to convince those jurors that your are lying.
For the average juror, there is a lot of information they don’t get to know. And so, a large part of their job is trying to determine whether any particular witness, especially you, is telling the truth or lying. In doing so, jurors make judgements based upon many things that – fair or not – have nothing to do with the truth.
How the person presents themselves, their manner of speech, how they respond to difficult questions. Even things like how they dress, how they walk, movements they make while testifying (and even sitting at Counsel’s table watching the trial). These all matter.
Ms. Paltrow is a great actress. While we didn’t watch her entire testimony, from what we saw, she testified well. I’m sure that she is a “great witness.” Heck, would anyone expect her to be anything other? Perhaps that’s great for her; or perhaps she won’t meet the high bar the jury set for her given her profession.
With that said, in considering your case, you need to understand that your jurors will make value judgements about witness credibility, including your own. They may make fair judgements, unfair judgements, and everything in between. But you can’t ignore this fact about accident trials, and you need to work with your attorney to become the best, most authentic witness that you can be. And your attorney needs to do the same with every witness you present.
They will use what you’ve done after your accident against you.
Right before wrapping up their case, defense attorneys for Ms. Paltrow recalled Mr. Sanderson to testify. What about?! Trips he had taking AFTER the accident. Apparently, Mr. Sanderson did a lot of traveling overseas after the accident, to include whitewater rafting. Clearly, the defense is implying two things: first, that he couldn’t really be injured if he did all this traveling. And second, that he thinks he’s going to be “cashing in” on his case against Ms. Paltrow.
To be clear, we think this is unfair. However, if you have your own accident case, you have to assume that everything you do after the accident may be admissible to prove that you weren’t really injured. So, yes, they will ask about that trip you took to France even though you’ve had it planned for 3 years. And, yes, they will try to imply that your trip to Mexico shows you’re looking to cash in, even though it was an anniversary gift from your significant other.
So, James, what are you saying? Can I not live my life? What I tell folks is, I’m fine with you taking those trips. However, just be aware that it will be used against you if at all possible. But I also remind folks that there’s never a guarantee you’ll win this case regardless. So, if your doctor says it’s OK, take that trip. Just know that someone will likely ask you about it.
Usually, insurance matters.
At least in Virginia, the presence (or absence) of insurance is not admissible at trial. For instance, if you’ve sued someone for personal injuries from a car accident, and they have $1 million in coverage from Geico, while you’re seeking the money from Geico, you are required to sue the individual. And when the jury considers whether to award you the money, it is not allowed to consider whether that person has insurance.
In this case, we don’t know whether Ms. Paltrow has an insurance policy that will pay the judgement should she lose in court. She may have some type of liability insurance that protects her for cases like this. Then again, even if she doesn’t, I think it’s clear that she can afford to pay whatever judgement a jury may award against her.
For your own case, however, insurance will likely matter. At least, for most of the cases we handle, defendants (and our clients) are just average folks living their lives. Perhaps they have a solid income, perhaps they don’t. And the same with the defendants. But usually, most folks that we sue on behalf of our clients don’t have a huge amount of money sitting in a bank to pay a court judgement. And if they do, they typically have a lot of insurance to protect that money.
Far too often, however, we get a call from a severely injured accident victim only to learn that the defendant has little or now insurance, and also has little to no assets to pay a judgement. What’s even worse, in many car accident cases, our injury victim has minimal car insurance (UIM or underinsured Motorist Coverage) to fill the gap. In these instances, we typically have to turn down the case because we can’t make money just appear.
So, particularly for car accidents, make sure that you buy a lot of UIM to protect yourself against folks that don’t have money or insurance. We typically recommend $1 million of UIM, and it only costs a couple hundred more dollars a year. Of course, you can’t buy more insurance AFTER an accident. So, make sure to get insured now!
Still have questions?
Make sure to check out our Personal Injury & Criminal Defense Practice Pages where we’ve answered many other questions you likely have. James Abrenio is a Fairfax-Based Personal Injury & Criminal Defense attorney who practices throughout Northern Virginia. You can learn more about James Abrenio, some of our Prior Results, and Read Our Reviews. Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.