Interview with Attorney Donald C. Kudler of the Cap & Kudler Law Firm in Las Vegas on Accidents, Injuries & Insurance
What happens after a vehicle accident can be as challenging as the event when victims seeking fair and just recovery over their injury claims find the insurance company and their attorneys ready to fight tooth and nail to limit their liability. The process can be insulting, frustrating, and emotional as they question every detail in your case.
The voice in your corner, standing up for you and fighting to prevent their twisting the facts and mis-represented your claim, is the lawyer you choose to represent you — make it count.
We caught up with Donald C. Kudler to ask a few questions, of the Cap & Kudler a personal injury law firm in Las Vegas, who is rated among the top 1% by the NADC, has a perfect 10 Avvo rating, is listed among the top 100 lawyers by the ASLA and is a certified specialist in Civil Trial Advocacy by the National Board of Trial Advocacy.
The firm also enjoys one of the greatest accolades a law practice can achieve, surpassing any award or industry honor — satisfied former clients who eagerly recommend their services to friends and family who also find themselves in need of representation.
I was involved in a wreck… Why wouldn’t I just call my insurer with my claim and be done with it?
Insurance is a bet you make with your insurer – a bet you hope to lose. Winning this bet means something bad happened whether it is limited to property damage or includes injury or death to a person.
Under your auto insurance policy, your insurance will only pay for certain types of damages depending on the facts of the accident and the damages caused by the crash. If you were at fault, your insurance company will pay for the damages you caused to other people and property. Depending on the coverage you paid for, your insurance might even pay for your property damage, medical care and/or lost income, in a crash you caused.
However, your insurance does not pay certain damages if you were not at fault for the wreck. Your insurance may still pay for your (and your passengers’) medical bills and wage loss in an crash you do not cause if you have medical payments and/or personal injury protection coverages. Your insurance may also pay for property damage caused by another driver if you paid for that coverage. Lastly, your insurance may also provide uninsured or under insured motorist coverages for cases where the person who caused the crash does not have any liability coverage or whose coverage is limited and less than necessary to compensate you for the injuries caused by the other driver’s negligence.
If another person caused the wreck, you need to make a claim against his liability coverage for the personal injury and property damage he caused by crashing into you or a car you were in. The claim needs to be made with his insurance company and not your own.
While they sound simple, these issues can become very complex issues and an experienced personal injury lawyer knows how to navigate them and understands the games insurance companies play with the lives of those injured in car crashes. A personal injury attorney will know who to contact and how to make claims for damages and how to handle a lawsuit when necessary.
Can you share some of the things you have experienced insurance companies do to limit their liability which can catch accident participants unaware?
There are two main issues in any car accident case: who caused the crash, and what are the damages caused by the crash. Insurers do their best to attack one or both of these issues to pay less money for injuries caused by their insured’s failure to drive safely and appropriately. Whenever possible, they will try and place some of the blame for the crash on the person making the claim. I had a case where the other driver tried to claim my client was a cause of the accident since he was lighting a cigarette for his driver at the time of the accident. Really??? If anything, my client was allowing his driver to pay attention to his driving rather than be distracted by lighting his own cigarette.
Where it is clear that the other driver caused the crash, the insurer will often try to belittle the damages by arguing that my client’s injuries were there before the accident or that the accident was so insubstantial that my client could not have been injured in the accident. The insurance companies and their attorneys will do everything in their power to call those making claims liars, cheaters and thieves. They hire accident reconstructionists, biomechanical engineers and medical doctors to render opinions and support their claims that the injuries were not caused by the accident or were there well before the accident. Their chosen doctors will say that the treating physicians over treated the clients and claim that the clients are malingers or exaggerators . . . just another medical sounding way to call them liars, cheaters and thieves.
The crash wasn’t my fault, but I had been drinking, does it matter for my claim?
If you were the passenger there is little chance that your having been drinking is relevant to who was at fault for the accident or the injuries caused by the accident. I have seen cases where a passenger caused an accident while drunk by grabbing the steering wheel, pulling the brake or distracting the driver. But, those are out of the ordinary.
Even if you were driving, there are many instance where being drunk does not effect who caused the accident…of course, I recommend NOT driving after drinking. Let’s say that someone has been drinking and is stopped at a red light with traffic going in the other direction through the intersection when she is rear ended by another driver. There was nothing that she could have done to avoid the accident and whether or not she had been drinking, or was drunk, has no bearing on who caused the accident.
Everyone has a duty to protect themselves. Here, you would have a duty NOT to get into a car with a person who had been drinking with you if they were not fit to drive. In the case that you knew your driver had been drinking and chose to get into a car with him, you would be assuming the risk of harm and have some fault for taking that risk.
The law of negligence requires that the person who causes an accident takes the person as they find them. In this situation, this means that if the alcohol was a factor in how badly a person was injured in a crash, the person who caused the crash could not blame the extent of the damages on you for having been drinking prior to the accident. While everyone has a duty to mitigate their damages, that duty – to contain the amount of damages we suffer as a result of an accident – that duty, in my opinion, does not arise until after the accident. So, a person who fails to follow their doctor’s orders and takes longer to heal – or does not heal as well as they could have if they had followed orders – should not be compensated for the lack of healing they caused by their failure to follow orders. But, in my mind, a person cannot mitigate damages before an accident occurs – so you cannot be said to have failed to mitigate your damages for having gotten into a car after drinking.
I had another client who was hit in a cross walk by a young man that had turned right out of a driveway and hadn’t seen her. The insurance company tried claiming that my client was at fault since she “had been drinking.” However, she was in the crosswalk with the right of way when the other driver made a tragic mistake and turned onto the street without seeing her. We had to file a lawsuit before getting the insurance company to pay for her injuries. The insurance company also tried to claim that my client’s medical history was relevant despite the fact that her injury was a broken leg from being hit by a car as a pedestrian. In the end, the insurance company’s position that they should not pay since my client was drunk in a crosswalk while walking with a previously broken leg proved ridiculous and they paid for the damages caused by their insured.
Can you share a little of what your firm does to build a case in support of my accident injury claim?
When clients comes in, I tell them we each have our jobs: theirs is to get the treatment they need for the accident and to follow their doctors’ orders; ours is to do everything else. We also try and educate our clients so they understand how the insurance companies will evaluate their claims as well as how the insurance companies will look to devalue their claims.
In the beginning not a lot happens outside of treatment, we advise the insurance companies that we represent the client and that all communications should be with our office and not with the client. We contact the treating doctors and other medical providers advising them that we are representing the clients and have authorization to get copies of their medical records and bills.
As treatment progresses, the clients need to let us know if there are new medical providers so we can continue to gather the records and bills for the accident. Once the treatment is over, we gather the medical records and summarize them so we know what the doctors are saying about the injuries and can prepare the demand based on those records and bills.
If there is a liability issue, where the other driver is claiming our client is at least partially to blame for the accident, we try and get statements from witnesses supporting our position that the other driver caused the crash – or was at least more at fault for causing the crash. Sometimes, there is an issue about the sequence traffic lights at an intersection. In that case we can get a copy of the traffic light sequence from the City or County to use to support our case.
For More Information About The Most Common Auto Accident Injuries, Visit Here
A lot of people visit Las Vegas from outside of Nevada, if a crash occurs while visiting, are they required to use an attorney from the State the incident occurred? How does that work?
This issue comes up and any case where the lawsuit would have to be filed in Nevada should be handled by a Nevada lawyer. While it is possible for a lawyer who does not have a Nevada license to be involved in a case, the lawyer has to get specific permission from the Court to represent the client in Court and a Nevada attorney has to serve as local Counsel during the time the case is being fought in Court. Knowing insurance companies, and their desire to pay as little as possible to victims of car crashes and other injuries where their insureds are at fault, I suspect they would try and lowball an attorney representing a client who cannot file suit in the proper Jurisdiction. In other words, if the attorney could not represent the client in Nevada, the insurance company would not feel as much pressure to make a fair settlement offer delaying the process and, possibly, resulting in a lower settlement.
I can see certain cases where a person is injured in a Nevada accident where they can use a lawyer in their own State to fight the case and file in that other State. Let’s say a person is visiting Las Vegas from Los Angeles and another Southern Californian crashes into her. A very strong argument can be made that the lawsuit can be filed in California as both Parties are there, the injured person treated there and other witnesses may be there while the only factor in favor of having the case filed in Nevada could be this is where the accident happened. There is a whole area of law covering which Jurisdiction or Venue is the proper place for a case to be heard.
I have had many cases where I worked with Counsel from another state to varying degrees: from serving as local counsel with the other attorney doing virtually all of the work, to doing most of the work myself with the other attorney handling client communication. Where the attorney wishes to practice in Nevada, but does not have a license, she has to seek the Court’s permission to be admitted Pro Hoc Vice. This allows them to represent a client as an attorney on that specific case only. There are restrictions on how often an attorney may do this within any Jurisdiction as well as requirements, such as being licensed in another State and in good standing with that State’s Bar.
There are a lot of lawyers out there… What separates the good from the great attorneys?
They say, “A good lawyer knows the law and a great lawyer knows the Judges.” This can be taken two ways. One way – the way it is intended – is to interpret as meaning it’s good to know and be friendly with the person who is making the decisions on your case…being part of a good ole boy network as it would be called in the old days. The other, although unintended, interpretation is that a great lawyer is one who knows the Judges because he has experience in Court and that’s important. It’s a fact: experience counts. Does experience alone make one a great lawyer? No. Does the lack of it prevent a lawyer from being great at her job? No. There are other factors.
Lawyers are communicators. The ability to communicate is at the core to our existence to serve our clients. Great lawyers can communicate on many levels. As lawyers, we have to communicate in our own legal language when talking to other lawyers, Judges, Arbitrators, Mediators, and others who regularly part of the legal system. But, we also have to be able to communicate complicated legal issues in ways that our clients understand so we have to translate from legalese to human terms in the same way that an electrician or plumber would have to translate from their technical terms to language I can understand as a non-professional in those fields if they want me to understand what their saying to me.
While lawyers live and work in a field surrounded by Laws, Rules, Statutes, Ordinances and other legal documents and precedents, great lawyers think creatively. I don’t mean that we look for ways around the law. We might look for ways to change the law when necessary through proper Appellate procedures, but we should never look to skirt the law. I mean we should see things from different perspectives and not make the same ole arguments time and time again. One of the best compliments I have received was when I was called a “curve baller” by another attorney during a Trial since he could not tell where my arguments were going.
Can you share how a settlement you won for a client positively impacted their lives after it was all over?
I have had many clients who were able to make changes to better their situations as a result of receiving fair compensation for injuries caused by accidents when they choose to use the money wisely. I had one client injured by a fall who could not return to a normal job and decided he would use the money to seed buying, rehabing and reselling homes after the Las Vegas housing market crashed. It was work he could do on his own time. What was even better was that he could help some of his friends in the trades make money helping him with the rehabs when their ability to find other work had slowed down. A small ripple effect from his settlement, but one that helped a few people in hard times.
How do you deal with the human tragedy you encounter? …the impact serious injuries and fatalities have on lives and the families you represent…
It’s hard and many of our clients don’t know how to deal with it or have a good support system to help them deal with it. We have to become that support system and help them through the difficulties they face. We have to listen and understand what they are going through. While I have been fortunate not to have been seriously injured or have had anyone close to me seriously injured in an accident, I do understand the pain and suffering they are going through as the victims of personal injury accidents or as the people close to those who have been seriously injured in accidents. I have been injured in accidents and have had to deal with the insults – intended or otherwise – of insurance companies, their adjusters and lawyers claiming that my injuries are not as bad as they were. Because I have had these experiences, as well as the loss of some close to me, I can understand how they feel and what they need to hear.
Can you briefly walk me through the claim process with your firm, and what I would need to do in preparation to file?
Basically, your job would be to treat, follow your doctors’ orders and keep me advised of the status of your treatment. It’s my job to keep up with gathering records and bills to prepare for a demand to be drafted. Once treatment is done, we gather the records and bills, determine what the damages are and what, if any, future issues the client is going to have, and decide an appropriate amount to demand. Once we receive an offer from the other side, we try and get to a number everyone can live with. If we can’t, then we prepare to go forward with litigation.
What has been your proudest moment / accomplishment as an attorney to date?
Actually, it is in a non-personal injury case. Most of our lives as lawyers involves either setting up situations through contracts and other agreements to use in litigation or fighting in litigation – both of which pit one party against another. Years ago, I was able to do something different. I put a family together who wanted to be recognized as a family. It included an adult adoption with a change in name of that adult to that of the man who had raised him and he felt was his real father although there had been no legal adoption along with changing the name of the son’s wife and child. It felt great to be involved in such a case where everyone won.
I was in a small car crash but am still considering filing a claim. Can you walk me through how the short-trial process for claims under $50,000 works?
No crash is a small crash. Some have more or less value than others, but all crashes that cause injury are serious to those that were injured. Lawsuits arising out of crashes in Nevada that result in no more than $50,000.00 in injuries and damages are placed into the Arbitration Program and, if not settled there, proceed to the Short Trial Program.
The case starts off the same as any other lawsuit with the filing of a Complaint for Damages and an Answer. To keep it simple, cases, with lower values, are placed into the Short Trial Program. Once they are there, the Nevada Short Trial Rules apply. The first step under those Rules is for a Short Trial Judge to be appointed through a Court process. In Clark County District Court, Short Trial Judges are experienced attorneys willing to assist the Judicial process by serving (for a law fee) as Short Trial Judges. As in all case, Short Trial cases proceed through a period of Discovery requiring the Parties to disclose the information they intend on producing at Trial and allowing them to make requests of the other parties and witnesses for information they feel they need to proceed to Trial.
After the Discovery period is completed, there may be Motions to limit evidence to be heard or for Summary Judgment as to all or part of the case. Then, if the case has not been dismissed or, otherwise, resolved, the case goes to a Short Trial. Short Trials can be heard by a Judge alone or by a Jury. Where there is a Jury, the Rules call for four jurors instead of the eight Jurors that hear cases under the conventional Trial rules. Short Trials follow all of the steps of a Conventional Trial but are conducted under strict timelines requiring the case to be heard in one day.
Each Party is allowed to conduct Jury Selection, make an Opening Statement, produce documents, examine and cross-examine witnesses, and make closing arguments. However, they are only allowed 15 minutes per side to ask questions of potential Jurors and 3 hours to make Opening Statements, present their case, and make Closing Arguments. How they divide their time is up to them, but they are done when the clock runs out. Then, it is up to the Jury to render a Verdict based on the facts and evidence presented. Based on the fact that I have had the Jury deliberate for more than two hours in more than one Short Trial case, I believe they take their jobs seriously when it comes to rendering a Verdict.
As a guideline, a case takes about nine months from the time it is filed to be heard at Arbitration. If it does not settle at Arbitration, it will be another nine months or so before the Short Trial is heard. It is not unusual to see a case take three years from the time it is filed until the day of the Short Trial. These things just take time and, as a client, it feels like forever.
What sets you apart from the countless other attorneys and firms?
Having been in their shoes, I understand how they feel. While there is a business part of the law, I do care about the clients and their lives and not just the bottom line to our firm. We’re not the biggest firm in town, but we have years of experience settling cases and taking them to Mediation, Arbitration or Trial when necessary. We’re often willing to take on difficult cases that other attorneys won’t touch or walk away from when they’re not able to reach an easy settlement.
Why do your clients love you?
Because they know I care and they know that I am going to work in their interest and not just look for the quick settlement. Because they know I will always be honest with them – even when the truth is to tell them the difficulties of their case. Because they know that we are not a mill and will give them individual attention and that we have the experience to take on the insurance companies.
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