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Tuesday, February 26, 2008

Wrongful DEATH

Wrongful death cases are complicated matters. If someone you love has died as a result of negligence, consult a personal injury attorney. If an injury case is not the type Kenneth Vercammen, Esq. can handle, we will try to refer you to another competent trial attorney.
In a Wrongful death jury trial in New Jersey, we [ your trial attorney] will research the current caselaw. As of 2003, the following a some of the instructions the trial judge will read to the jury, prior to the jury deciding damages [the money award]:

The plaintiff brings this lawsuit as the representative of the survivors of the decedent and seeks to recover damages from the defendant contending that defendant's fault was responsible for the death of the decedent. The money damages sought on behalf of the survivors of the decedent represent the actual pecuniary or financial loss which plaintiff contends has been and will in the future be suffered by the survivors due to the death of the decedent. This claim for pecuniary or financial loss is distinguished from any physical injuries or suffering that may have been sustained by the decedent, such as any pain and suffering or disability sustained by the decedent. In the event that you find in favor of the plaintiff, that is, that the defendant was at fault, which fault was a proximate cause of plaintiff decedent's death, you must limit your consideration to whatever financial loss was suffered by the survivors as measured by what they would have received from the decedent within a reasonable degree of probability if the decedent had survived. I instruct you that the pecuniary injuries or money losses in this case should not include emotional distress, anguish, grief and sorrow or loss of emotional satisfaction derived from the society and companionship of the decedent. These matters, though real and very distressing, cannot be considered in determining the extent of the financial or pecuniary loss suffered by the survivors who are represented in this action by the plaintiff. The financial loss does include, however, not only actual monies which would have been contributed to or earned for the benefit of the survivors, but it also includes the reasonable value of benefits which would have been received in the nature of services, assistance and care as well as training, guidance and counsel that the decedent's survivors (such as children, parents or spouse) would have received had the decedent lived. To determine the amount of damages to be awarded, i.e., the extent of the financial loss caused by the premature death of the decedent, all circumstances and probabilities which bear upon that financial loss may be considered. The following are factors that you may weigh: 1. You may consider the age and general state of health of the decedent and of the survivors. [You will recall that there was testimony concerning their life expectancies as of the date of the decedent's death (and the decedent's work life expectancy). These figures are in evidence and are assumptions based on probable length of life which have been computed from statistical data. They are general rules and you should therefore use them with caution in any individual case. Except for this incident the decedent might have lived much longer than estimated by the actuarial period of time. You should consider the expectancy figures in your determination of damages, if any, to be awarded for financial losses in accordance with my instructions in this case, but you must exercise your sound judgment in computing them. Do not treat them as a necessary or fixed rule.]See footnote 1 2. You should consider the net earnings of the decedent after taxes as of the time of his/her death. You should give due regard to any evidence concerning [the decedent's income tax liability and you should also consider]See footnote 2 the decedent's potential future net income during the balance of his/her working life expectancy. The reason for considering net income is that only that portion of his/her income after taxes, not gross income, would have been available for the benefit of the decedent's survivors who are represented by the plaintiff in this case.

[Add where decedent is a minor child:

In this case, since the decedent is a minor child, you, the jury, should consider the value of the reasonably anticipated direct financial contributions which would have been made by the child to the survivors after he/she became a wage earner. You should also take into consideration any actual financial contributions, if any, which the decedent, while living, may have made to the survivors in determining the pecuniary loss to them. ] 3. You should also consider the decedent's own personal expenses. Therefore, it is necessary that you find to what extent the net earnings of the decedent were necessary for his/her own use, maintenance and personal needs. In determining the pecuniary loss of the survivors there must be deducted from the net earnings of the decedent whatever sums fairly represent expenses for his/her own maintenance since it is obvious that these monies could not have been used for the benefit of the survivors. 4. You may also consider the benefit given by the decedent to a survivor or survivors in the form or services or assistance rendered by the decedent and in guidance and training which may have been offered by the decedent to the survivors. You must determine the reasonable value to be placed on the services or benefits that will be lost by reason of the death of the decedent.

[Add where decedent is a minor child:

In this case, since the decedent is a minor child, your assessment of damages for the loss of services and assistance may be somewhat complicated, so let me elaborate on this point further. In addition to the loss of anticipated direct financial contributions from the decedent to the survivors which I noted previously, you, the jury, should also consider the pecuniary value of the loss of the child's anticipated services to the survivors, such as household chores and baby-sitting for younger siblings, for example. You should also consider the value of the parents' [or other survivors, where applicable] loss of the child's care, companionship, advice and guidance as they grow older. You must remember, however, that your award for damages for these losses will be confined to their pecuniary value, excluding emotional loss. With respect to companionship, care, and advice you must initially distinguish between their emotional value and their pecuniary, or economic, value. We recognize that children may prove valuable services such as companionship, care, advise and guidance over time as the parents face advanced age or declining health.

Care and companionship, lost by death, to be compensable must be that which would have provided services substantially similar to those provided by the "companions" or "homemakers" often hired today by the aged or the infirm, or substantially equivalent to services provided by nurses or practical nurses. [Companionship in this sense, however, will not include true nursing services unless the decedent had or was likely to have special training.] The value of these services must be confined to what the marketplace would pay a stranger with similar qualifications for performing such services. [In interpreting the criteria or "similar qualifications" you may also attach a pecuniary value to the knowledge of the parents' likes, dislikes and habits which the decedent may have possessed.] Remember, however, that no pecuniary value may be attached to the emotional satisfaction gained by the parent when the child performs these services.) The loss of the decedent's guidance, advice and counsel to the survivors is likewise to be confined to its pecuniary element. It is not the loss simply of the exchange of views, no matter how perceptive, when the child and parent (or other survivor, where appropriate) are together; it is certainly not the loss of pleasure which accompanies such an exchange. Rather, it is the loss of guidance, advice and counsel which all of us need from time to time in particular situations, for specific purposes, perhaps as an aid in making a business decision, or a decision affecting one's life generally, or even advice and counsel needed to relieve depression or personal dilemmas. It must be the kind of advice and guidance that could be purchased from a business advisor, a therapist, or a trained counselor, for instance. Now, taking the foregoing principles into consideration, it is up to you, the jury, to decide what services the decedent would have rendered to the survivors, and what the value of these services is. In doing so, remember that there need be no proof that the parents (or other survivors, where appropriate) will probably purchase such companionship and advice; it is sufficient that the deceased would have rendered them if he/she had lived. 5. In considering those various factors, and in ascertaining the probabilities of pecuniary loss, you should also consider the decedent's personality and character, his/her habits and customs and the relationship that existed between the decedent and the survivors. If you find that plaintiff is entitled to an award, the amount that is recoverable is comprised of two parts: (a) the amount of the loss to date; and (b) the present value of future financial loss.

However, you will announce your verdict in one lump sum of money totaling these two parts. The first thing that you must determine, once you have decided that the plaintiff is entitled to recover, is the amount of the financial loss from the date of death to the present date. To do this you must agree on an amount which will represent the loss sustained by the survivors each year, and simply add these amounts for each year elapsed since the date of decedent's death to the present time. The next determination you must make is the present value of the loss that may reasonably be anticipated from this time on into the future. This computation is a little more complicated. In arriving at such present value of future loss, it would be improper to take the amount of loss, such as a certain number of dollars per year, and simply multiply that amount by the number of years which you find constitutes the time that the decedent would have continued to contribute to the survivors. The reason for this is that if plaintiff is entitled to an award, the survivors will receive their award of damages in one lump sum, whereas, had the decedent lived, the financial contribution to the survivors would have been spread over a period of time. A sum of money due at some future time is worth less today because, if paid today in a lump sum rather than in installments, the lump sum received today can be invested to earn interest. For example, if you were to determine that the amount of survivor's yearly loss was $100 and that this loss would extend over a period of 10 years and then you simply multiplied $100 x 10, your award of $1,000 would be too much. This is so because the lump sum awarded now can be invested and produce interest income. Such an award, therefore, would have a greater value than just $100 a year. It would have a value of $100 a year plus the interest. Therefore, if you were to make an award (merely by multiplying $100 x 10 years), the survivors would receive more than their actual loss, or $1,000 plus the interest it would earn. For this reason, the proper method of determining the present value of future losses requires that the total amount of future losses be reduced by a certain amount. This is done by making an allowance for the interest that this total sum of money would earn for such period of time. This allowance is calculated by a process called discounting or reducing the total future financial losses during the period of expectancy by applying a fixed interest figure. In other words, you should determine the amount of survivor's yearly loss, if any, and then award a lump sum which when invested will pay out from that lump sum, plus the interest it will earn, an amount equal to the yearly loss to the survivor. Furthermore, the fund you create must be completely used up or exhausted at the end of the period of the loss. In making this computation you may also take into account the extent to which inflation will probably reduce the value of money during the period of the loss. You may determine to what extent the purchasing power of the dollar will be recovered because of inflation, you should increase the total amount of your award for anticipated future financial losses in order to offset the extent by which inflation will reduce the value of the dollar in the future. You should also know that any award you may make is not subject to Federal income tax. However, the interest earned on the amount of your award will be subject to income taxation. And, therefore, you should increase the fund to account for the survivors' increased tax liability. So, in evaluating future losses, there are several factors which should be considered by you in arriving at your computation of future losses. Remember with respect to future losses that you are creating a present fund which will be used to pay plaintiff from the principal sum and the interest it earns in an amount equal to a survivor's yearly loss so that at the end of the period of time you determine this loss will be sustained, the fund plus the interest will be used up. Let me repeat the factors you should consider when determining an amount to compensate plaintiff for future losses: (1) The amount of the survivor's yearly loss. (2) The period of time over which said loss will be incurred in the future, i.e., from today's date forward for that period of time you determine to be the balance of decedent's work life expectancy. (Remember you will have already determined the loss from the date of death to today). (3) That the fund should be discounted to reflect the interest the fund will earn. (4) The extent to which inflation may or may not affect the value of the financial loss. (5) That no income tax will be imposed on the sum awarded but that the interest earned by the fund will be subject to Federal income tax. I am now going to give each of you a sheet of paper which contains a step by step illustration of how to compute the present value of a survivor's future pecuniary loss. The sheet also contains an example from an imaginary case to show you how the various formulas are applied. Keep in mind that the numbers used in the example are not taken from this case and are not intended to suggest what figures you should use. The amount of any given survivor's financial loss, interest rates and discount rates must be based upon your own sound judgment resulting from your understanding and analysis of the evidence in the case as well as your collective experience and common sense. [An expert testified as to his/her analysis of future wage increases and discount rates relative to inflation and gave you his/her opinion of what the discount and inflation rates should be in this case. giving due regard to his/her credibility, you may use those trends and rates in arriving at your own independent single appraisal of the survivors' actual pecuniary losses].See footnote 3 Arriving at a figure that represents the plaintiff's financial and pecuniary loss due to the decedent's premature death is difficult. Remember that your decision should be based upon your own common sense judgment of the amount of money and the value of services and guidance decedent would have contributed to the welfare of the plaintiff.

Thus, to recapitulate, if you find plaintiffs are entitled to an award based upon the rules of law I have given you, then in determining the amount of award because of the premature death of decedent you must first determine the amount of financial loss suffered from the date of death to the present time. To arrive at that figure you must add the amount of plaintiff's yearly loss for the number of years from the date of death to the present time. Next, you should add to that amount a sum which represents the future loss from today calculated in accordance with my instructions.

COMPUTATION OF PRESENT VALUE OF FUTURE FINANCIAL LOSS:

1. Insert here the total amount of money the survivor has lost by reason of the death. $______ 2. Insert here the average annual rate of interest for the period of the survivor's loss. _______% 3. Insert here the amount of money which is necessary to be invested at the rate determined in 2. in order to yield the loss determine in 2. [Formula: Subtract the rate set forth in 2. from 100%. Then multiply the number in 1. by that percentage]. $______ 4. Insert here the average annual rate of inflation for the period of the survivor's loss. __________% 5. Insert here the amount of money necessary to add to the survivor's loss to account for inflation. [Formula: Multiply the inflation factor in 4. by the loss set forth in 1.] $__________ 6. Insert here the amount of money necessary to compensate the survivor taking into consideration both investment and inflation factors. [Formula: Add 3. to 5.]. $__________

Example: Assuming a loss to the survivor of $1,500/year for four years with an average interest rate of eight percent and an average inflation rate of six percent: Step One: $1,500/year x four years $6,000

Step Two: Interest rate (averaged for four years) 8%

Step Three: (100% - 8% = 92%) ($6,000 x 92% = $5,520) $5,520

Step Four: Inflation rate (averaged for four years) 6%

Step Five: ($6,000 x 6% = $360) $ 360

Step Six: ($5,520 + $360 = $5,880) $5,880

Footnote: 1 This passage in brackets should be used only where evidence of the decedent's work life has been offered or where evidence of a survivor's life expectancy is relevant to a determination of pecuniary loss and the Court has been asked to take judicial notice of the life expectancy tables.

Footnote: 2 In the event that no evidence has been produced as to decedent's income tax liability, the trial judge should consider whether this phrase should be included in the charge.

Footnote: 3 The Committee expresses no opinion as to the need for expert testimony on interest (discount) or inflation factors. It recognizes that cases involving wrongful death claims are tried without expert testimony. The charge is structured to be used in either event.

The Committee also acknowledges that Matthews v. Nelson, 57 N.J. Super. 515 (App. Div. 1959) permits the use of annuity tables contained in the Civil Practice Rules. Those tables express certain interest rates but no corresponding inflation factors.

Associate Editor: Ernest Fantini

Workplace Injuries

WHAT TO TRY TO DO AT THE ACCIDENT SCENE IF INJURED
1. Stop . . . do not leave the scene of the accident. CALL 911, tell them where the accident occurred and (ask for medical help if needed). 2. Notify the property manager or owner, if possible. Insist they observe where you were injured. 3. Get names and addresses of all witnesses. Witnesses will be a tremendous help to you in any subsequent court action if there is any question of liability involved. Get the names and addresses of as many witnesses as possible. If they refuse to identify themselves, jot down identifying features or the license plate numbers of their automobiles. Do not discuss the accident with the witnesses. Do not give the witnesses' names to anyone but the police, your attorney or your insurance company.

4. While waiting for ambulance, write down- Accident Information Date __ Time __ Location __ Weather __ area conditions __

5. Summary of accident __

6. Diagram of accident location

7. Seek medical care. If you have any reason to suspect you were injured in the accident, go to a hospital immediately or see a physician promptly. You'll want it on record that you sought treatment right away, not in a week or so.

8. Write down name of Security Personnel, Police Officers, Department and Badge Number, Ambulance crew, etc.

9. Do not assign or accept blame for the accident. - The scene of the accident is not the place to determine fault. Discuss the accident only with the ambulance and medical personnel, your attorney and with representatives of your insurance company. Give the other party only your name and address. - Be cooperative with the police.

10. Have immediate photos taken of accident site.

11. Call a personal injury attorney immediately, not a real estate attorney. Call Kenneth A. Vercammen- Trial Attorney Attorney At Law (732) 572-0500 When you need help the most, we will be ready to help you.

12. Never give a signed statement to the claims adjuster representing the property owner's insurance company. The same goes for a phone recording. They may be used against you in court to deny your claim. Speak with your personal injury attorney first.

IF YOU HAVE BEEN INJURED AT YOUR WORK PLACE

It is important that you -- 1. DO NOT discuss your case with anyone except your doctors and attorney. 2. DO NOT make any statements or give out any information. 3. DO NOT sign any statements, reports, forms or papers of any kinds, . 4. DO NOT appear at police or other hearings without first consulting with your attorney. INFORM YOUR ATTORNEY PROMPTLY of any notice, request or summons to appear at any hearings. 5. Refer to your attorney anyone who asks you to sign anything or to make any statement or report or who seeks information concerning your case. 6. Direct your doctor and other treatment providers not to furnish or disclose any information concerning your case to any entity other than your insurance company without YOU AND YOUR ATTORNEY'S WRITTEN PERMISSION. 7. You may have insurance coverages such as Worker's Comp, Blue Cross, Blue Shield or Major Medical which require prompt attention. However, be sure to have your treatment providers send bills immediately to all of your insurance companies. 8. Notify your attorney promptly of any new developments. Small things may be important. Keep your attorney informed. 9. Maintain accurate records of all information and data pertaining to your case. 10. If you or any witnesses should move, be sure to notify your attorney of the new address.

Worker's compensation recovery if no negligence by others, but on the job injury Original draft by Julius J. Feinson, Esq. Modified by Kenneth Vercammen, Esq. If a worker is injured on the job, the worker has three basic rights: (1) the right to medical treatment; (2) the right to receive payment (temporary disability) for lost time; and (3) the right to receive payment for any after-effects of the injury if the after-effects are found to be permanent (partial permanent disability). If you are injured, you should immediately report the accident. Make sure an accident report is filled out and write down the names of all witnesses. When a worker is injured on the job, the employer or the employer's insurance company are obligated to furnish and pay for medical treatment. However, in New Jersey, the employer has the right to select the doctors who will provide that treatment, since it's the employer or its insurance company who is responsible for payment of medical expenses. It follows that if the worker does not go to the authorized treating doctor, then the employer will generally not be responsible for payment of the medical expenses. When an employee is hurt on the job, the employee is entitled to receive temporary disability benefits of 70% of wages up to an amount set by the State. For example, the maximum amount for an injury in 1997 was only $496 per week. These benefits are payable on a retroactive basis if the employee is out at least seven (7) days and the treating doctor certifies that the employee cannot work. In general, temporary disability benefits will continue to be paid so long as the workers' treating doctor certifies that the employee cannot work. When medical treatment is completed and the employee is able to return to work, there may be a basis for payment to the employee of benefits for the after-effects of the injury. This is called partial permanent disability and is based on a schedule which utilizes a system of assigning value to each part of the body on a scale of 1% to 100%. Generally, the issue of partial permanent disability is resolved by filing a claim in the Division of Workers' Compensation. A lawyer who represents a claimant before the Division of Workers' Compensation may not charge any fee in advance. An Administrative Law Judge who hears the case will set the fee (never more than 20%) and if there is no recovery, an attorney will not be allowed a fee. Finally, disposition of a claim in the Division of Workers' Compensation will not always operate to end a claim. There are rights and obligations on the part of both the employer and the employee. Since an employee is not obligated to pay a fee in a workers' compensation case unless awarded by the Court, it would make sense for the employee to immediately consult an attorney to protect his/her rights. The employee should also be aware of the fact that there are time limits regarding the reporting of accidents. The safest approach is, of course, to report a work related accident immediately, even if it seems relatively minor at the time. Failure to report an accident can cause delays in receiving temporary disability and other benefits. When you meet with a worker's compensation attorney, the following information will be requested from you: 1. Name, address and telephone number. 2. Name, address and telephone number of employer. 3. Name, address and telephone number of any union the client is a member of, along with full details of any union benefits that may have been received or to which the client has a right. (There may be a union benefit plan which provides the employee with payments for drugs and medical bills in addition to workers' compensation benefits.) 4. The job title the client held when injured, along with the client's educational background and previous employment history. 5. The nature of the employer's business. 6. Your Social Security number. 7. Your sex, age, and marital status at the time of the accident. 8. The name of the employer's worker's compensation insurance carrier or indication of whether the employer is self-insured. 9. The exact details of how you gave notice of the accident to the employer or whether the facts and circumstances are such that the employer must have had knowledge. 10. The exact place where the accident occurred and the date and time of the occurrence. 11. A full description in your own handwriting of how the accident occurred or to the exposures if an occupational disease case. 12. Your wages or earnings and whether on time or piece-work basis, the rate per hour, or the weekly wage. 13. The date when you stopped work and the date of return to work. 14. A statement of past and present complaints, as well as a description of all body parts affected by the accident. Explain any emotional complaints since the accident to investigate the question of neuro-psychiatric disability. 15. The compensation paid for temporary or permanent disability must be ascertained. 16. Full details as to medical aid required and whether it was requested from the employer. If the medical treatment was furnished by the employer, all dates of treatment should be inventoried. If the employer refused to furnish the treatment, indicate in detail all requests made to the employer for treatment, as well as obtaining the names and addresses of all doctors who furnished the treatment. 17. Be certain you have the names and addresses of all physicians and hospitals who rendered medical treatment since the accident, including but not limited to the injuries arising from the accident. Attempt to obtain the amount of all physician's bills and prepare a file for paid and unpaid bills. If you are receiving medical treatment from a doctor of your choice or if the employer has refused to render medical treatment, the attorney must give written notification to the employer and its insurance carrier of all the details concerning your injuries and accident and the name and address of the doctor by whom he is being treated or the name and address of the doctor who is going to be treating him. The attorney must clearly indicate in the letter that this is a formal request pursuant to Title 34 for the employer/respondent to furnish medical treatment by the doctor chosen by the petitioner or, alternatively, that the respondent should immediately provide the name and address of a doctor that it wants to treat the petitioner. In Worker's Compensation, the respondent controls the choice of doctor. 18. Any Blue Cross, Blue Shield, or major medical plans which cover you, as well as identification numbers, since it may be possible to obtain payment for medical bills from these plans, if the employer/worker's compensation refuses to make payment. See Workers' Compensation (ICLE 1983). If you are injured while working, we recommend you immediately speak with an experienced attorney.

Conclusion We appreciate that this is a great deal of information to absorb. However, we are certain that our clients appreciate having this information from the outset. Each request and bit of information given here represents an important part in recovering full value for your injury. Therefore, we respectfully request your full cooperation. If you have questions or concerns regarding these instructions, we encourage you to feel free to contact the office at any time. Call Kenneth Vercammen to schedule an appointment 732-572-0500

Associate Editor: Ernest Fantini

WORKERS' COMPENSATION - INJURIES ON THE JOB BASIC RIGHTS AND OBLIGATIONS

When the Workers' Compensation Act was passed many years ago it was probably the first true "no fault" law in this State. With some very narrow exceptions, the question of negligence (fault) is not an issue if a worker is hurt on the job. Whether or not the employer is at fault has no impact on the worth of a case. In cases involving injuries suffered in connection with employment, your lawyer will represent you without payment in advance.
If a worker is injured on the job, the worker has three basic rights:
(1) the right to medical treatment;

(2) the right to receive payment (temporary disability) for lost time; and

(3) the right to receive payment for any after-effects of the injury if the after-effects are found to be permanent (partial permanent disability).

If you are injured, you should immediately report the accident. Make sure an accident report is filled out and write down the names of all witnesses.

When a worker is injured on the job, the employer or the employer's insurance company are obligated to furnish and pay for medical treatment. However, in New Jersey, the employer has the right to select the doctors who will provide that treatment, since it's the employer or its insurance company who is responsible for payment of medical expenses. It follows that if the worker does not go to the authorized treating doctor, then the employer will generally not be responsible for payment of the medical expenses. When an employee is hurt on the job, the employee is entitled to receive temporary disability benefits of 70% of wages up to an amount set by the State. For example, the maximum amount for an injury in 1997 is $496 per week. These benefits are payable on a retroactive basis if the employee is out at least seven (7) days and the treating doctor certifies that the employee cannot work.

In general, temporary disability benefits will continue to be paid so long as the workers' treating doctor certifies that the employee cannot work.

When medical treatment is completed and the employee is able to return to work, there may be a basis for payment to the employee of benefits for the after-effects of the injury. This is called partial permanent disability and is based on a schedule which utilizes a system of assigning value to each part of the body on a scale of 1% to 100%.

Generally, the issue of partial permanent disability is resolved by filing a claim in the Division of Workers' Compensation. A lawyer who represents a claimant before the Division of Workers' Compensation may not charge any fee in advance. An Administrative Law Judge who hears the case will set the fee (never more than 20%) and if there is no recovery, an attorney will not be allowed a fee.

Finally, disposition of a claim in the Division of Workers' Compensation will not always operate to end a claim. There are rights and obligations on the part of both the employer and the employee.

Since an employee is not obligated to pay a fee in a workers' compensation case unless awarded by the Court, it would make sense for the employee to immediately consult an attorney to protect his/her rights.

The employee should also be aware of the fact that there are time limits regarding the reporting of accidents. The safest approach is, of course, to report a work related accident immediately, even if it seems relatively minor at the time. Failure to report an accident can cause delays in receiving temporary disability and other benefits.

When you meet with a worker's compensation attorney, the following information will be requested from you:

1. Name, address and telephone number.

2. Name, address and telephone number of employer.

3. Name, address and telephone number of any union the client is a member of , along with full details of any union benefits that may have been received or to which the client has a right. (There may be a union benefit plan which provides the employee with payments for drugs and medical bills in addition to workers' compensation benefits.)

4. The job title the client held when injured, along with the client's educational background and previous employment history.

5. The nature of the employer's business.

6. Your Social Security number.

7. Your sex, age, and marital status at the time of the accident.

8. The name of the employer's worker's compensation insurance carrier or indication of whether the employer is self-insured.

9. The exact details of how you gave notice of the accident to the employer or whether the facts and circumstances are such that the employer must have had knowledge.

10. The exact place where the accident occurred and the date and time of the occurrence.

11. A full description in your own handwriting of how the accident occurred or to the exposures if an occupational disease case.

12. Your wages or earnings and whether on time or piece-work basis, the rate per hour, or the weekly wage.

13. The date when you stopped work and the date of return to work.

14. A statement of past and present complaints, as well as a description of all body parts affected by the accident. Explain any emotional complaints since the accident to investigate the question of neuro-psychiatric disability.

15. The compensation paid for temporary or permanent disability must be ascertained.

16. Full details as to medical aid required and whether it was requested from the employer. If the medical treatment was furnished by the employer, all dates of treatment should be inventoried. If the employer refused to furnish the treatment, indicate in detail all requests made to the employer for treatment, as well as obtaining the names and addresses of all doctors who furnished the treatment.

17. Be certain you have the names and addresses of all physicians and hospitals who rendered medical treatment since the accident, including but not limited to the injuries arising from the accident. Attempt to obtain the amount of all physician's bills and prepare a file for paid and unpaid bills.

If you are receiving medical treatment from a doctor of your choice or if the employer has refused to render medical treatment, the attorney must give written notification to the employer and its insurance carrier of all the details concerning your injuries and accident and the name and address of the doctor by whom he is being treated or the name and address of the doctor who is going to be treating him. The attorney must clearly indicate in the letter that this is a formal request pursuant to Title 34 for the employer/respondent to furnish medical treatment by the doctor chosen by the petitioner or, alternatively, that the respondent should immediately provide the name and address of a doctor that it wants to treat the petitioner. In Worker's Compensation, the respondent controls the choice of doctor.

18. Any Blue Cross, Blue Shield, or major medical plans which cover you, as well as identification numbers, since it may be possible to obtain payment for medical bills from these plans, if the employer/worker's compensation refuses to make payment. See Workers' Compensation (ICLE 1983).

If you are injured while working, we recommend you immediately speak with an experienced attorney.

Associate Editor: Ernest Fantini

What to Do in an Accident?

We sincerely hope that you and your family will enjoy safe motoring, free from accident. If however you do have an accident, to protect your legal rights, the following suggestions may be helpful:
At The Accident Scene:

1. Stop . . . do not leave the scene of the accident
(a) DIRECT OTHER TRAFFIC around the accident.
(b) HELP THE INJURED but don't move them unless absolutely necessary.
(c) CALL THE POLICE, tell them where the accident occurred and ask for medical help if needed.
2. Get names, addresses, and license numbers of all drivers involved.
________________________________________________
________________________________________________
3. Get description and registration number and insurance information of all cars involved.
_____________________________________
License Plate Number
____________________________________
Registration #
Make ___________ Year _________
____________________________________
Damage
______________________________________________________
Insurance Company
____________________________________
Insurance Policy Number
4. Get names and addresses of all witnesses (other than passengers)
_________________________________________________
Name
_______________________________________________
Address
_________________________________________________
Phone
______________________________________________________
Name
_______________________________________________
Address
_________________________________________________
Phone
5. Police Officers
__________________________________________________
Department
________________________________________________
Officer.
_______________________________________________
Badge No.
______________________________________________________
Officer.
______________________________________________________
Badge No.

6. Accident Information
_________________ _________________

Date Time
______________________________________________________

Location _______________________________________________________
No. of vehicles involved
_____________________________________________________

Weather
______________________________________________________
Road conditions
________________________________________________________
Damage
______________________________________________________
Speed of the other car

6. Summary of accident
_______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________
7. Diagram of accident
8. Make sure no one is injured. If anyone is injured call an ambulance. If you have any reason to suspect you were injured in the accident, see a physician promptly. You'll want it on record that you sought treatment right away - not in a week or so .

9. Witnesses will be a tremendous help to you in any subsequent court action, if there is any question of liability involved. Get the names and addresses of as many witnesses as possible. If they refuse to identify themselves, jot down the license plate numbers of the their automobiles. Do not discuss the accident with the witnesses. Do not give the witnesses to anyone but the police, your attorney or your insurance company.

10. Do not assign or accept blame for the accident.

- The scene of the accident is not the place to determine fault. Discuss the accident only with the police, your attorney and with representatives of your insurance company. Give the other party only your drivers license number, registration number and insurance information.

- Be cooperative with the police.

11. Seek hospital attention.

12. Speak with your Doctor or Chiropractor

13. Call your insurance company to report the accident.

14. Call: Kenneth A. Vercammen, Attorney At Law (732) 572-0500

When you need help the most, we will be ready to help you.

15. Never give a signed statement to the claims adjuster representing the other driver's insurance company. The same goes for a phone recording. They may be used against you in court.

16 . What you must always have in your car.....

a.- Drivers License

b.- Car Registration

c.- Insurance Card

d.- This Flyer on Accidents

e.- A Working Pen

f. - Quarters for Phone Calls

(Ambulance/First Aid and Police) The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation. The Law Office now accepts payment by American Express, Visa and Master Card. Disclaimer This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date). It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of Kenneth Vercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.

Associate Editor: Ernest Fantini

What to Expect in a Personal Injury Case

Procedurally, the following events occur in most personal injury cases. First, we must complete our investigation and file. This will involve the collection of data from your physician, your employer, and our investigator. When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement.
If that avenue is not productive, then a complaint is filed, and the parties served with notice that a claim has been made. The opposition then is given a fixed time to file what is known as an "Answer." The Answer if usually followed by a request for written interrogatories. These are questions that must be answered by the claimant with the aid of counsel. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question.

The deposition is just as important as the trial itself, and in the event you are deposed during the course of this action, you will receive detailed instructions as to procedure. After taking depositions, the case will be set down for trial. Following the setting of the case for trial, there will be preliminary conferences commonly known as pretrial hearings.

Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice.

Doctor/ Treatment:

It will help your case to tell us and your doctors about any injury or medical problems before or after your accident. Good cases can be lost by the injured person's concealing or forgetting an earlier or later injury or medical problem. Insurance companies keep a record of any and all claims against any insurance company. The insurance company is sure to find out if you have ever made a previous claim.

Tell your doctors all of your complaints. The doctor's records can only be as complete as what you have given. Keep track of all prescriptions and medicines taken and the bills therefore. Also save all bottles or containers of medicine.

You should keep a diary of your experiences since your accident. In addition to this daily record, we also ask you to start describing a single day in the course of your life. In other words, describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort do you put into your employment, what activities you engage in after work, etc.

In other words, we need you to describe the changes in your working life, your playing life, your life as a husband or wife or child or parent. In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook.

And remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family and friends, at work and at play. When you have completed this description, please return it to this office in the enclosed envelope.

You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail. Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times. Your attorney will keep track of your legal expenses, which may include costs of filing, service of process, investigation, reports, depositions, witness fees, jury fees, etc.

From time to time, however, there will be expenses incurred that you must keep track of yourself. We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth. Keep your canceled checks and your list of expenses together, for we will need them at a later date.

Permit us to reiterate at this time that the opposition's insurance company will in all probability have a team of lawyers and investigators working diligently to counter your claim. During the course of their investigation, it is quite possible that they may attempt to contact you through various (and sometimes, devious) methods. Please do not make their jobs any easier for them by answering their questions.

We cannot emphasize too strongly that you should refrain at all times from discussing this matter with anyone--and that includes your employer, your relatives, your neighbors, and even your friends. Of course, there are exceptions to this rule.

If there are friends or neighbors or relatives who know all of the facts and circumstances surrounding the accident and can be of assistance to you, then they should be referred to this office so that their natural sympathy can be channeled into an effective asset for you.

Insurance companies pay money to claimants when they are satisfied there are both liability and damages that support a recovery. They can be expected to thoroughly investigate the facts of the accident and any past injuries or claims. The insurance company will obtain copies of all of the claimant's past medical records.

The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone.

Obviously, we cannot stress too strongly that you not discuss this matter with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.

* Questioning: If any person approaches you with respect to this accident without your attorney's permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorney's office. * Bills: Retain all bills which relate to your damages, including medical expenses, hospital expenses, drugs and medicines, therapy, appliances, and anything needed to assist in your recovery. If possible, pay these bills by check or money order, so that a complete record may be kept. If this is not possible, be certain to obtain a complete receipt with the bill heading on it, to indicate where the receipt came from and the party issuing it. * Evidence: Be certain to keep anything that comes into your possession which might be used as evidence in your case, such as shoes, clothing, glasses, photographs, defective machinery, defective parts, foreign substances which may have been a factor in your accident, etc. Be sure to let the office know that you have these items in your possession. * Photographs: Take photographs of all motor vehicles, machinery, appliances, etc., that may be connected--directly or indirectly--with your accident. Again, be sure to let the office know that you have such photographs. * Diary: Keep a diary of all matters concerning this accident--no matter how trivial you think it may be. You should include notes on the treatments you receive, therapy, casts, appliances, hospitalization, change of doctors, change of medication, symptoms, recurrence, setbacks, disabilities and inconveniences. If you have any doubt about the propriety of including some particular information, please call the office and let us assist you. * Keep your attorney advised: Keep this office advised at all times with respect to changes in address, important changes in medical treatment, termination of treatment, termination of employment, resumption of employment, or any other unusual change in your life. * Insurance reports: Before making any report to your insurance company, consult with this office on the advisability of the type of reports to be made concerning liability, medical payment coverage, property damage, or other claims under your policy, or claims against your own policy by a third party. * Lost wages: Keep a complete record of all lost wages. Obtain a statement from your company outlining the time you have lost, the rate of salary you are paid, the hours you work per week, your average weekly salary, and any losses suffered as a result of this accident. Where possible, also obtain other types of evidence such as ledger sheets, copies of time cards, canceled checks, check stubs, vouchers, pay slips, etc. * New information: In the event that any new information concerning the evidence in this case comes to your attention, report this to the Attorney immediately. This is particularly true in the case of witnesses who have heretofore been unavailable. * Surveillance: Remember at all times that you may be under surveillance and, therefore, subject to being photographed or filmed by the adverse party. Be advised that there are cases where photographs and films have been introduced in court showing claimants who were allegedly in serious condition participating in activities which they alleged they were unable to do. You do not have to live in fear of being photographed, of course, if your cause is a just one.

However, when carrying on your usual activities, keep in mind at all times that you are subject to investigation. If you have been seriously injured, do not do anything that will jeopardize your case during the course of your daily life. You should always follow your doctor's advice. If you have to do things which cause you pain, this can usually be explained to the full satisfaction of any court or jury.

There are cases where the insurance agent has attempted to discredit a personal injury plaintiff by taking movies of the claimant engaged in various physical activities. In one case, large rocks weighing over one hundred pounds were placed at the door of the garage during the night so that claimant would have to be forced to remove the rocks in order to drive to work. This, of course, was filmed and used to discredit the plaintiff's claim in court.

Associate Editor: Ernest Fantini

What to Expect at a Deposition

Personal History: (Anticipate every question in the answers to Interrogatories being posed again!) The following questions are just some of the questions a defense attorney can ask a personal injury plaintiff. We obtained these questions from a list prepared by insurance companies and given to their defense attorneys.

Name in Full
Given Name
Name on Birth Certificate
Ever Used Any Other Name
If Plaintiff Female
Any Name When Married
Previous Names By Marriage
Nicknames or Names by Which Generally Known

Day, Month & Year of Birth
Place of Birth
Ever Given Any Other Day of Birth
If So, Why

Schooling:
What schools attended
What schools graduated
When left such school
Any special training schools
High schools
Special Training in military service

Past Employment:
First job after leaving school
Names, Addresses of employers
If small corporation, who was owner
Is company still in business
Present address
Actual reason for leaving, resigned, discharged
Stated reason to employer for leaving
Ever left employment or changed place of employment for reasons of health
What employer plan or hospitalization if any, what insurance company

Present Employment if not Employee of Defendant:
When first employed
Was any condition of health concealed from present employer or any employer
If so, what and why
Any workmen's compensation benefits ever received from present employer
Any hospitalization or medical services furnished by employer or employers or insurance company

Condition of Health Prior to Accident:
Name of Regular Family Doctor
Doctor normally called by plaintiff or members of family when necessary
Present and past addresses of such doctor still in practice
Physical conditions for which treated or examined by such doctor
Any regular physical checkups by such doctor
Physical examination if any by present employer by past employers
Ever hospitalized for any condition of health

Ever X-Rayed:
If so, what hospitals, when, where, what condition of health, period of stay, period of disability from work
Ever have any prior condition of health causing pain in any part of body, when, what part of body
Ever have numbness, tingling, dizziness any trouble with eye sight, hearing, breathing, maintaining balance, and pain in area

Claim History:
Ever have accident/injury for which claim was made by plaintiff or against plaintiff
Ever received any money from any insurance company for claimed personal illness or accident
Any health insurance (even if no claim)
What company at present
Any other companies in the past
Any benefits received from other company

Life Insurance:
Medical examinations for life insurance
When, where, what doctor
Names of companies with which policies >presently held or formerly held
Ever rejected on application for life insurance

Family History:
Married or single
Name of wife, husband
Ever divorced
Names of previous wives, husbands
Former residences
Place where divorce occurred
Present name of previous spouse
Children
Age of children
Residence of children
Children by other marriages
Any dependent children

Driver's License:
What state, when issued
Record number & date of issue
Any restrictions on license
Ever have license suspended
Ever licensed in other states which was suspended or restrictions

Criminal record:
Ever been arrested
Ever jailed
Ever suspended sentence
Ever convicted of felony
Ever placed on probation
Driving license ever suspended for traffic violation for other reasons

Personal Habits:
Use of alcohol
Frequency
Any alcohol on day of accident
Any alcohol within 24 hours before accident

Personal Information:
Ever wear glasses for reading or generally
Where glasses obtained
Reason for wearing glasses
Name of doctor prescribing glasses
Have glasses recently been
changed since accident
Same glasses now as before accident
Why not
Glasses broke in accident
Glasses on person in accident

Previous earning:
Employment at time of accident
Hourly rate of pay
Normal rate of pay
Normal working hours
Overtime
Average yearly earnings
Average monthly earnings presented paid
Average paycheck take home
Previous earnings from other employers
Present rate of pay

If plaintiff not returned to employment:
Rate of pay presently being paid for or a time of accident
Any earnings from second jobs
Any earnings from self-employment
Any past earnings from any source
Any past income from any source

Military Service:
When and where registered for military service
If deferred, for what reason
Classification
Draft Card
Social Security Number
If in service :
serial number
place entered service
place discharged from service
Request authorization to obtain records
Army
Navy
Veteran's Bureau
Selected Service records
Any disability payment at present or ever
Date of discharge
Does plaintiff have copy of discharge papers

Ability to read:
Inquire as to schooling
If schooling limited inquire as to ability to read on asking questions about eyesight
Does Plaintiff have any difficulty in reading newspapers, books and letters from friends

THE ACCIDENT/MEDICALS:
Location:
Exact location, if possible
Landmarks
Special objects in vicinity
Is condition of area the same now
What changes
Was condition of area the same on other occasions before accident
Any special condition on day of accident
Familiarity of plaintiff with the area
Prior to accident any different condition noted
How frequently is plaintiff in area

Conditions in area:
Lighting
If artificial lights, were lights on
Any light bulbs missing
Any unusual condition of lighting nor normal
Any obstructions to visibility
Darkness, smoke, haze, clouds, dust, sun in eyes, raining, frosty, dampness, mud, slippery
If wears glasses, was plaintiff wearing glasses at time of accident: sun glasses or goggles.

The Accident
Plaintiffs full story of the accident in narrative form and then in chronological order
After Plaintiff has related inquire into circumstance.
Plaintiff's Oral Statements:
Did plaintiff tell anyone how accident happened immediately after the accident
If so, who, when
Did person informed make any responses as to knowledge of accident, or any comments as to conditions surrounding accident
If another employee involved in accident, any conversation with any employee

Court rules on deposition 2002:
RULE 4:14. DEPOSITIONS UPON ORAL EXAMINATION

4:14-1. When Depositions May Be Taken

Except as otherwise provided by R. 4:14-9(a), after commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 35 days after service of the summons and complaint upon the defendant by any manner, except that leave is not required if the defendant has already served a notice of taking deposition or otherwise sought discovery. The attendance of witnesses may be compelled by subpoena as provided in R. 4:14-7.
The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
Note: Source-R.R. 4:16-1. Former rule deleted and new R. 4:14-1 adopted July 14, 1972 to be effective September 5, 1972 (formerly R. 4:10-1); amended July 21, 1980 to be effective September 8, 1980; amended July 10, 1998 to be effective September 1, 1998; amended July 5, 2000 to be effective September 5, 2000.
4:14-2. Notice of Examination; General Requirements; Deposition of Organization

(a) Notice. Except as otherwise provided by R. 4:14-9(b), a party desiring to take the deposition of any person upon oral examination shall give not less than 10 days notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition, which shall be reasonably convenient for all parties, and the name and address of each person to be examined, if known, and, if the name is not known a general description sufficient to identify the person or the particular class or group to which the person belongs. If a defendant fails to appear or answer in any civil action within the time prescribed by these rules, depositions may be taken without notice to that defendant.

(b) Time. The court may for cause shown enlarge or shorten the time for taking the deposition.

(c) Organizations. A party may in the notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth for each person designated the matters on which testimony will be given. The persons so designated shall testify as to matters known or reasonably available to the organization.

(d) Production of Things. The notice to a party deponent may be accompanied by a request made in compliance with and in accordance with the procedure stated in R. 4:18-1 for the production of documents and tangible things at the taking of the deposition.

Note: Source-R.R. 4:20-1. Former rule deleted and new R. 4:14-2 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-1 and 4:14-1); paragraph (a) amended July 21, 1980 to be effective September 8, 1980; paragraphs (a) and (c) amended July 13, 1994 to be effective September 1, 1994.

4:14-3. Examination and Cross-Examination; Record of Examination; Oath; Objections

(a) Examination and Cross-Examination. Examination and cross-examination of deponents may proceed as permitted in the trial of actions in open court, but the cross-examination need not be limited to the subject matter of the examination in chief.

(b) Oath; Record. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under the officer's direction and in the officer's presence, record the testimony of the witness. The testimony shall be recorded and transcribed on a typewriter unless the parties agree otherwise.

(c) Objections. No objection shall be made during the taking of a deposition except those addressed to the form of a question or to assert a privilege, a right to confidentiality or a limitation pursuant to a previously entered court order. The right to object on other grounds is preserved and may be asserted at the time the deposition testimony is proffered at trial. An objection to the form of a question shall include a statement by the objector as to why the form is objectionable so as to allow the interrogator to amend the question. No objection shall be expressed in language that suggests an answer to the deponent. Subject to R. 4:14-4, an attorney shall not instruct a witness not to answer a question unless the basis of the objection is privilege, a right to confidentiality or a limitation pursuant to a previously entered court order. All objections made at the time of the examination to the qualifications of the officer taking the deposition or the person recording it, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidential objections to a videotaped deposition of a treating physician or expert witness which is taken for use in lieu of trial testimony shall be made and proceeded upon in accordance with R. 4:14-9(f).

(d) No Adjournment. Except as otherwise provided by R. 4:14-4 and R. 4:23-1(a) all depositions shall be taken continuously and without adjournment unless the court otherwise orders or the parties and the deponent stipulate otherwise.

(e) Written Questions. In lieu of participating in an oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

(f) Consultation With the Deponent. Once the deponent has been sworn, there shall be no communication between the deponent and counsel during the course of the deposition while testimony is being taken except with regard to the assertion of a claim of privilege, a right toconfidentiality or a limitation pursuant to a previously entered court order.

Note: Source-R.R. 4:16-3, 4:20-3. Paragraphs (b), (d) and (e) amended July 14, 1972 to be effective September 5, 1972 (Paragraph (a) formerly R. 4:10-3); paragraph (c) amended July 21, 1980 to be effective September 8, 1980; paragraphs (b) and (e) amended July 13, 1994 to be effective September 1, 1994; paragraph (c) amended and paragraph (f) added June 28, 1996 to be effective September 1, 1996.

4:14-4. Motion or Application to Terminate or Limit Examination or for Sanctions

At any time during the taking of the deposition, on formal motion or telephone application to the court of a party or of the deponent and upon a showing that the examination or any part thereof is being conducted or defended in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent or party, or in violation of R. 4:14-3(c) or (f), the court may order the person conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in R. 4:10-3. If the order made terminates the examination, it shall be resumed thereafter only upon further order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion or telephone application for an order. The provisions of R. 4:23-1(c) shall apply to the award of expenses incurred in making or defending against the motion or telephone application.

Note: Source-R.R. 4:20-4. Amended July 14, 1972 to be effective September 5, 1972; amended June 28, 1996 to be effective September 1, 1996.

4:14-5. Submission to Witness; Changes; Signing

If the officer at the taking of the deposition is a certified shorthand reporter, the witness shall not sign the deposition. If the officer is not a certified shorthand reporter, then unless reading and signing of the deposition are waived by stipulation of the parties, the officer shall request the deponent to appear at a stated time for the purpose of reading and signing it. At that time or at such later time as the officer and witness agree upon, the deposition shall be submitted to the witness for examination and shall be read to or by the witness, and any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness. If the witness fails to appear at the time stated or if the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the witness' failure or refusal to sign, together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress under R. 4:16-4(d) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

Note: Source-R.R. 4:20-5. Amended July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994.

4:14-6. Certification and Filing by Officer; Exhibits; Copies

(a) Certification and Filing. The officer shall certify on the deposition that the witness was duly sworn and that the deposition is a true record of the testimony. The officer shall then promptly file with the deputy clerk of the Superior Court in the county of venue a statement captioned in the cause setting forth the date on which the deposition was taken, the name and address of the witness, and the name and address of the reporter from whom a transcript of the deposition may be obtained by payment of the prescribed fee. The reporter shall furnish the party taking the deposition with the original and a copy thereof. Depositions shall not be filed unless the court so orders on its or a party's motion. The original deposition shall, however, be made available to the judge to whom any proceeding in the matter has been assigned for disposition at the time of the hearing or as the judge may otherwise request. Filed depositions shall be returned by the court to the party taking the deposition after the termination of the action. A videotaped deposition shall be sealed and filed in accordance with R. 4:14-9(d).

(b) Documentary Evidence. Documentary evidence exhibited before the officer or exhibits proved or identified by the witness, may be annexed to and returned with the deposition; or the officer shall, if requested by the party producing the documentary evidence or exhibit, mark it as an exhibit in the action, and return it to the party offering the same, and the same shall be received in evidence as if annexed to and returned with the deposition.

(c) Copies. The party taking the deposition shall bear the cost thereof and of promptly furnishing a copy of the transcript to the witness deposed, if an adverse party, and if not, to any adverse party. The copy so furnished shall be made available to all other parties for their inspection and copying. Copies of videotaped depositions shall be made and furnished in accordance with R. 4:14-9(d).

Note: Source-R.R. 4:20-6(a)(b)(c). Paragraph (c) amended July 14, 1972 to be effective September 5, 1972; paragraphs (a) and (c) amended July 21, 1980 to be effective September 8, 1980; paragraph (a) amended July 15, 1982 to be effective September 13, 1982; paragraphs (a) and (c) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended June 28, 1996 to be effective September 1, 1996.

4:14-7. Subpoena for Taking Depositions

(a) Form; Contents; Scope. The attendance of a witness at the taking of depositions may be compelled by subpoena, issued and served as prescribed by R. 1:9 insofar as applicable, and subject to the protective provisions of R. 1:9-2 and R. 4:10-3. The subpoena may command the person to whom it is directed to produce designated books, papers, documents or other objects which constitute or contain evidence relating to all matters within the scope of examination permitted by R. 4:10-2.

(b) Time and Place of Examination by Subpoena; Witness' Expenses.

(1) Fact Witnesses. A resident of this State subpoenaed for the taking of a deposition may be required to attend an examination only at a reasonably convenient time and only in the county of this State in which he or she resides, is employed or transacts business in person, or at such other convenient place fixed by court order. A nonresident of this State subpoenaed within this State may be required to attend only at a reasonably convenient time and only in the county in which he or she is served, at a place within this State not more than 40 miles from the place of service, or at such other convenient place fixed by court order. The party subpoenaing a witness, other than one subject to deposition on notice, shall reimburse the witness for the out-of-pocket expenses and loss of pay, if any, incurred in attending at the taking of depositions.

(2) Expert Witnesses and Treating Physicians. If the expert or treating physician resides or works in New Jersey, but the deposition is taken at a place other than the witness' residence or place of business, the party taking the deposition shall pay for the witness' travel time and expenses, unless otherwise ordered by the court. If the expert or treating physician does not reside or work in New Jersey, the proponent of the witness shall either (A) produce the witness, at the proponent's expense, in the county in which the action is pending or at such other place in New Jersey upon which all parties shall agree, or (B) pay all reasonable travel and lodging expenses incurred by all parties in attending the witness' out-of-state deposition, unless otherwise ordered by the court.

(c) Notice; Limitations. A subpoena commanding a person to produce evidence for discovery purposes may be issued only to a person whose attendance at a designated time and place for the taking of a deposition is simultaneously compelled. The subpoena shall state that the subpoenaed evidence shall not be produced or released until the date specified for the taking of the deposition and that if the deponent is notified that a motion to quash the subpoena has been filed, the deponent shall not produce or release the subpoenaed evidence until ordered to do so by the court or the release is consented to by all parties to the action. The subpoena shall be simultaneously served no less than 10 days prior to the date therein scheduled on the witness and on all parties, who shall have the right at the taking of the deposition to inspect and copy the subpoenaed evidence produced. If evidence is produced by a subpoenaed witness who does not attend the taking of the deposition, the parties to whom the evidence is so furnished shall forthwith provide notice to all other parties of the receipt thereof and of its specific nature and contents, and shall make it available to all other parties for inspection and copying.

Note: Source-R.R. 4:20-1 (last sentence), 4:46-4(a) (b). Paragraphs (a) and (b) amended July 14, 1972 to be effective September 5, 1972; paragraph (c) adopted November 5, 1986 to be effective January 1, 1987; paragraph (b) recaptioned paragraph (b)(1) and amended, paragraph (b)(2) adopted and paragraph (c) amended July 14, 1992 to be effective September 1, 1992.

4:14-8. Failure to Attend or Serve Subpoena; Expenses

If the party giving notice of the taking of a deposition fails to attend and proceed the rewith and another party attends in person or by attorney pursuant to the notice, or if the party giving the notice fails to serve a subpoena upon a witness who because of such failure does not attend and another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred as a result of attendance either by the attending party or that party's attorney, including reasonable attorney's fees.

Note: Source-R.R. 4:20-7(a)(b). Amended July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994.

4:14-9. Videotaped Depositions

Videotaped depositions may be taken and used in accordance with the applicable provisions of these discovery rules subject to the following further requirements and conditions:

(a) Time for Taking Videotaped Depositions. The provisions of R. 4:14-1 shall apply to videotaped depositions except that such a deposition of a treating physician or expert witness which is intended for use in lieu of trial testimony shall not be noticed for taking until 30 days after a written report of that witness has been furnished to all parties. Any party desiring to take a discovery deposition of that witness shall do so within such 30-day period.

(b) Notice. A party intending to videotape a deposition shall serve the notice required by R. 4:14-2(a) not less than 30 days prior to the date therein fixed for the taking of the deposition. The notice shall further state that the deposition is to be videotaped.

(c) Transcript. The videotaping of a deposition shall not be deemed to except it from the general requirement of stenographic recording and typewritten transcript. Prior to the swearing of the witness by the officer, the name, address and firm of the videotape operator shall be stated on the record.

(d) Filing, Sealing, Copies. Immediately following the conclusion of the videotaped deposition, the videotape operator shall deliver the tape to the officer who shall take physical custody thereof for the purpose of arranging for the making of one copy thereof. Upon return to the officer of the original and copy of the tape, the officer shall seal and file the original with the deputy clerk of the Superior Court in the county in which the matter is pending and shall deliver the copy to the party taking the deposition. That party shall then furnish a copy of the tape to an adverse party who shall make it available for copying and inspection to all other parties.

(e) Use. Videotaped depositions may be used at trial in accordance with R. 4:16-1. In addition, a videotaped deposition of a treating physician or expert witness, which has been taken in accordance with these rules, may be used at trial in lieu of testimony whether or not such witness is available to testify and provided further that the party who has taken the deposition has produced the witness for further videotaped deposition necessitated by discovery completed following the original videotaped deposition or for other good cause. Disputes among parties regarding the recall of a treating physician or expert witness shall be resolved by motion, which shall be made as early as practicable before trial. The taking of a videotaped deposition of a treating physician or expert witness shall not preclude the party taking the deposition from producing the witness at trial.

(f) Objections. Where a videotaped deposition of a treating physician or expert witness is taken for use at trial in lieu of testimony, all evidential objections shall, to the extent practicable, be made during the course of the deposition. Each party making such objection shall, within 30 days following the completion of the deposition, file a motion for rulings thereon and all such motions shall be consolidated for hearing. A copy of the tape shall be edited in accordance with said rulings and the copy so edited shall be sealed and filed with the clerk after all parties have had the opportunity to view and copy it.

(g) Cost of Videotaped Depositions. All out-of-pocket expenses incurred in connection with a videotaped deposition, including the making of copies herein required and the editing of tapes, shall be borne, in the first instance, by the party taking the deposition. The cost of court presentation of the deposition shall be borne, in the first instance, by the party offering the deposition.

(h) Record on Appeal. Where a videotaped deposition is used at trial, a typewritten transcript thereof shall be included in the record on appeal. The videotape itself shall not constitute part of the record on appeal except on motion for good cause shown.

Note: Adopted July 21, 1980 to be effective September 8, 1980; paragraph (e) amended June 29, 1990 to be effective September 4, 1990; paragraph (c) amended July 13, 1994 to be effective September 1, 1994; paragraph (d) amended June 28, 1996 to be effective September 1, 1996.

Associate Editor: Ernest Fantini

What to do if you have a Sport related Injury?

If You Have a Sports Injury Claim, Don't Delay
If you've been in an accident and are considering making a claim, call a lawyer promptly, as there are time limits for making claims. These time limits (called "statutes of limitations") have harsh results if not followed. Recently, a woman who was hurt in a car accident made a claim one day after the statue of limitations for injury actions passed. Despite this minor violation, a court dismissed her claim, and she could not recover for her injuries and losses. In addition, a "Notice of Claim" must be served on a Public Entity within 90 days.
What happens in a Personal Injury Sports Claim:
We will not handle a case unless there is bona fide negligence. You must have a serious permanent injury.

AT THE ACCIDENT SCENE

1. Stop . . . do not leave the scene of the accident.

CALL THE AMBULANCE, tell them where the accident occurred and (ask for medical help if needed).

2. Notify the property manager or owner, if possible. Insist they observe where you fell. For example, if you fall on debris at an ice skating, notify the manager.

3. Get names and addresses of all witnesses

Witnesses will be a tremendous help to you in any subsequent court action if there is any question of liability involved. Get the names and addresses of as many witnesses as possible. If they refuse to identify themselves, jot down the license plate numbers of their automobiles. Do not discuss the accident with the witnesses. Do not give the witnesses' names to anyone but the police, your attorney or your insurance company.

4. While waiting for ambulance, write down- Accident Information

Date __ Time __

Location __

Weather __

Road conditions __

Damage __

5. Summary of accident __

6. Diagram of accident location

7. Call an ambulance. If you have any reason to suspect you were injured in the accident, go to a hospital immediately or see a physician promptly. You'll want it on record that you sought treatment right away, not in a week or so.

8. Write down name of Police Officers, Department and Badge Number, Ambulance crew, etc.

9. Do not assign or accept blame for the accident.

- The scene of the accident is not the place to determine fault. Discuss the accident only with the ambulance and medical personnel, your attorney and with representatives of your insurance company. Give the other party only your name and address.

- Be cooperative with the police.

10. Have immediate photos taken of accident site.

11. Call a personal injury attorney immediately, not a real estate attorney.

Call Kenneth A. Vercammen- Trial Attorney

Attorney At Law

(732) 572-0500

When you need help the most, we will be ready to help you.

12. Never give a signed statement to the claims adjuster representing the property owner's insurance company. The same goes for a phone recording. They may be used against you in court to deny your claim. Speak with your personal injury attorney first.


IF YOU HAVE BEEN INJURED DUE TO NEGLIGENCE IN A SPORTS INJURY

It is important that you --

1. DO NOT discuss your case with anyone except your doctors and attorney.

2. DO NOT make any statements or give out any information.

3. DO NOT sign any statements, reports, forms or papers of any kinds, .

4. DO NOT appear at police or other hearings without first consulting with your attorney.

INFORM YOUR ATTORNEY PROMPTLY of any notice, request or summons to appear at any hearings.

5. Refer to your attorney anyone who asks you to sign anything or to make any statement or report or who seeks information concerning your case.

6. Direct your doctor and other treatment providers not to furnish or disclose any information concerning your case to any entity other than your insurance company without YOU AND YOUR ATTORNEY'S WRITTEN PERMISSION.

7. You may have insurance coverage such as Blue Cross, Blue Shield or Major Medical which require prompt attention. However, be sure to have your treatment providers send bills immediately to all of your insurance companies.

8. Notify your attorney promptly of any new developments. Small things may be important. Keep your attorney informed.

9. Maintain accurate records of all information and data pertaining to your case.

10. If you or any witnesses should move, be sure to notify your attorney of the new address.

Financial Recovery if injured while falling down


1. Kenneth Vercammen Helps Injured persons

A person who is injured as a result of the negligence of another person is what we in the legal profession refer to as a personal injury claimant. In other words, they have been injured as a result of an accident, and now wish to prosecute a claim against a negligent property owner and its insurance company. As the attorney of record, I will be bringing this action for the injured person. Therefore, I request that all clients do as much as possible to cooperate and help in every way. The purpose of this article is to describe the procedure that we may follow and give you sufficient instructions to enable you to assist us in this undertaking. Needless to say, helping us is just another way of helping yourself.

2. Clients should provide my office with the following

1. Any bills

2. All Hospital or doctor records in your possession

3. Photos of scars, cuts, bruises

4. Photos of damage to your clothes and property

5. Photos of accident site

6. Major Med Card

7. Paystub if lost time from work

3. Attorney- Client Confidential Relationship

First, I want to thank our clients for giving me the opportunity to assist them in their case. I am a legal professional and I have great pride and confidence in the legal services that I perform for clients during our relationship as attorney-client. If you have concerns about your case, please call my office. (732) 572-0500

We feel that this case is extremely important not only to you, but to this office as well. This is not simply a matter of obtaining just compensation for you, although that is very important; we take professional pride in guiding our clients carefully through difficult times to a satisfactory conclusion of their cases.

4. Submission of Bills to Major Medical Second


5. Diary

We want you to keep a diary of your experiences since your accident. In addition to this daily record, we also ask you to start describing a single day in the course of your life. In other words, describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort you put into your employment, what activities you engage in after work, etc. In other words, we need you to describe the changes in your working life, your playing life, your life as a husband or wife or child or parent. In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook. Remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family, friends, and co-workers.

Keep a diary of all matters concerning this accident-no matter how trivial you think it may be. You should include notes on the treatments you receive, therapy, casts, appliances, hospitalization, change of doctors, change of medication, symptoms, recurrence, setbacks, disabilities and inconveniences. If you have any doubt about the propriety of including some particular information, please call the office and let us assist you.

6. Record expenses

You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail. Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times.

From time to time, however, there will be expenses incurred that you must keep track of yourself. We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth. Keep your canceled checks and your list of expenses together, for we will need them at a later date.

Your attorney will keep track of your legal expenses, which may include costs of filing, service of complaint, investigation, reports, depositions, witness fees, hospital/ medical records, etc.

7. Investigation and Filing of Complaint

Procedurally, the following events occur in most personal injury cases. First, your attorney must complete the investigation. This will involve the collection of information from your physician, your employer, and our investigator. We will need your doctors to provide us with copies of all bills, medical records and possibly a medical report.

When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement. If the insurance company will not make an adequate offer, then a Complaint and Case Information Statement is prepared by your attorney. It is filed in the Superior Court, Law Division. Your attorney then will prepare a summons and have the defendants personally served with the Summons and Complaint. The defendant, through their insurance company, must file an "Answer" within 35 days.

8. Interrogatory Questions and Discovery

The Answer is followed by a request for written interrogatories. These are questions that must be answered by each party. The Superior Court has set up certain "Form A" Interrogatory Questions which are contained in the Rules of Court. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question. The deposition is just as important as the trial itself. In the event you are deposed during the course of this action, you will receive detailed instructions as to the procedure and will be required to watch a videotape. After taking depositions, the case will be set down for an Arbitration. If the parties do not settle after the Arbitration, the case will be given a trial call date.

Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice.

9. Doctor/ Treatment

It will help your case to tell us and your doctors about any injury or medical problems before or after your accident. Good cases can be lost by the injured person concealing or forgetting an earlier or later injury or medical problem. Insurance companies keep a record of any and all claims against any insurance company. The insurance company is sure to find out if you have ever made a previous claim.

Tell your doctors all of your complaints. The doctor's records can only be as complete as what you have given. Keep track of all prescriptions and medicines taken and the bills. Also save all bottles or containers of medicine.


10. Bills

Retain all bills which relate to your damages, including medical expenses, hospital expenses, drugs and medicines, therapy, appliances, and anything needed to assist in your recovery. If possible, pay these bills by check or money order, so that a complete record may be kept. If this is not possible, be certain to obtain a complete receipt with the bill heading on it, to indicate where the receipt came from and the party issuing it.

11. Evidence

Be certain to keep anything that comes into your possession which might be used as evidence in your case, such as shoes, clothing, glasses, photographs, defective machinery, defective parts, foreign substances which may have been a factor in your accident, etc. Be sure to let the office know that you have these items in your possession.


12. Photographs

Take photographs of all motor vehicles, accident site, etc., that may be connected--directly or indirectly--with your accident. Again, be sure to let the office know that you have such photographs.

.i.13. Keep your attorney advised

Keep this office advised at all times with respect to changes in address, important changes in medical treatment, termination of treatment, termination of employment, resumption of employment, or any other unusual change in your life.


i.14. Lost wages

Keep a complete record of all lost wages. Obtain a statement from your company outlining the time you have lost, the rate of salary you are paid, the hours you work per week, your average weekly salary, and any losses suffered as a result of this accident. Where possible, also obtain other types of evidence such as ledger sheets, copies of time cards, canceled checks, check stubs, vouchers, pay slips, etc.


.i.15. New information

In the event that any new information concerning the evidence in this case comes to your attention, report this to the attorney immediately. This is particularly true in the case of witnesses who have heretofore been unavailable.

16. Do not discuss the case

The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone.

Obviously, we cannot stress too strongly that you DO NOT discuss this matter with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.

17. Questioning

If any person approaches you with respect to this accident without your attorney's permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorney's office.

18. Investigation by Defendant Insurance Company

Permit us to reiterate at this time that the opposition's insurance company will in all probability have a team of lawyers and investigators working diligently to counter your claim. During the course of their investigation, it is quite possible that they may attempt to contact you through various (and sometimes, devious) methods. Please do not make their jobs any easier for them by answering their questions.

We cannot emphasize too strongly that you should refrain at all times from discussing this matter with anyone--and that includes your employer, your relatives, your neighbors, and even your friends. Of course, there are exceptions to this rule.

If there are friends or neighbors or relatives who know all of the facts and circumstances surrounding the accident and can be of assistance to you, then they should be referred to this office so that their natural sympathy can be channeled into an effective asset for you.

Insurance companies pay money to claimants when they are satisfied there are both liability and damages that support a recovery. They can be expected to thoroughly investigate the facts of the accident and any past injuries or claims. The insurance company will obtain copies of all of the claimant's past medical records.

19. Surveillance by Insurance Companies

Remember at all times that you may be under surveillance and, therefore, subject to being photographed or filmed by the adverse party. Be advised that there are cases where photographs and films have been introduced in court showing claimants who were allegedly in serious condition participating in activities which they alleged they were unable to do. You do not have to live in fear of being photographed, of course, if your cause is a just one.
However, when carrying on your usual activities, keep in mind at all times that you are subject to investigation. If you have been seriously injured, do not do anything that will jeopardize your case during the course of your daily life. You should always follow your doctor's advice. If you have to do things which cause you pain, this can usually be explained to the full satisfaction of any court or jury.
There are cases where the insurance agent has attempted to discredit a personal injury plaintiff by taking movies of the claimant engaged in various physical activities. In one case, large rocks weighing over one hundred pounds were placed at the door of the garage during the night so that claimant would have to be forced to remove the rocks in order to drive to work. This, of course, was filmed and used to discredit the plaintiff's claim in court.

20. The value of a case depends on the Permanent Injury, medical treatment and doctor's reports
Undoubtedly, you have questions as to how much your case is worth. We are going to be frank: The fact of the matter is there can be no answer to this question until we have completed the investigation in your case. Once we complete our investigation, of course, we can make a determination as to the amount of the defendant's liability, if any, and even at that we will only be at a starting point. After that, we must obtain all necessary information concerning your lost wages, your disability, your partial disability, your life changes, and your prognosis. You may rest assured of one thing, however, and that is the fact that your case will not be settled below its true value, that is the fair compensation for the injuries you have received. You may also rest assured that no settlement agreement will be entered into without your consent.

Conclusion

We appreciate that this is a great deal of information to absorb. We also appreciate that our requests for client's assistance have been numerous. However, we are certain that our clients appreciate having this information from the outset. Each request and bit of information given here represents an important part in recovering full value for your injury. Therefore, we respectfully request your full cooperation. If you have questions or concerns regarding these instructions, we encourage you to feel free to contact the office at any time.

Associate Editor: Ernest Fantini