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Tips for Travelers: What To Do when Your Voyage Goes Terribly Wrong

  by Susie Injijian
  Injijian Law Office, APC – Berkeley Office

  Abstract:

     Accidental injury and death are often compensable under the law, but the type 
and degree of recovery permitted depend on a number of circumstances. When 
an injury-causing accident happens during travel by air or sea, the victim’s right 
to be compensated is subject to even more complex and varying rules. Learn the 
basics to better protect yourself, especially while traveling, as well as some 
useful tips on how to pick the right lawyer.

     ACCIDENTAL INJURY AND THE LAW: WHAT YOU NEED TO KNOW

    Accidental death and serious injury happen all too often.  When you or someone close to you is seriously injured, life as you’ve known it stops completely; your ability to feel even simple pleasures comes to a screeching halt, and your awareness of having to meet your personal, professional and financial obligations, earn a living and take care of your dependents, suddenly becomes urgent, overwhelming, even despairing.

     The accidental death of a loved one is the ultimate loss, forever impacting you and all others who depended on that person for support, companionship and love.  The pain of separating from a family member is made exponentially worse by the suddenness and seeming randomness of an accidental death.  Not only are surviving family members bereft in their grief, they more keenly feel their own vulnerability in a world where accidents with devastating effects can, and tragically do, happen.

     WHEN AN ACCIDENT COULD HAVE BEEN PREVENTED: THE LAW HOLDS RESPONSIBLE THOSE WHOSE      CARELESSNESS BRINGS HARM TO OTHERS.

     The law does not provide a remedy for every accidental injury.  Accident laws, the remedies they provide, and the procedures that make those remedies available, are complex and vary greatly from case to case, depending on the specifics of the accident, the victims, and the person(s) or entity responsible.  
While some accidents could not have been prevented, too many happen because someone was careless. In most cases, the law provides for compensation to victims of such accidents, so that the person whose carelessness caused the harm is held accountable.

     WHEN RECOVERY FOR INJURY OR LOSS IS LEGALLY AVAILABLE, THE LAW AIMS TO COMPENSATE THE VICTIMS AS FULLY AS POSSIBLE.

     An injured person is entitled to recover: 

  1. Compensation for past and future medical expenses;
  2. Wages and other earned income lost because of the injury;
  3. The reduction in one’s capacity to earn a living;
  4. The value of personal and household services that he or she could not perform while injured (or can no longer perform); and
  5. Compensation for pain and suffering of all kinds, past and future.

     Those who suffer the accidental death of a family member are entitled to recover:

  1. Compensation for the incalculable loss of a human being, and all that is missed because of his or her absence;
  2. Compensation to those for the loss of the family member’s financial support.
The value of a human being to his or her family is beyond measure, and should be well in excess of any financial loss.  To be compensated, the loss must be described in complete and accurate and terms that the law recognizes, and is distinct from grief.

     When you or someone you care about suffers a serious injury, you need someone who knows how to help you receive the maximum possible recovery for everything you’ve lost.  You need a top lawyer experienced in advocating successfully for accident victims, and you need a lawyer who takes the time to know you, your circumstances and your situation, to make sure you get every advantage due you under the law.

     WHAT’S DIFFERENT ABOUT ACCIDENTS ON THE ROAD?

     Travel interrupted by accidental injury can result in anything from extreme inconvenience to unspeakable tragedy.  It is also more difficult for the traveler to protect his or her legal rights in unfamiliar territory.
When the accident occurs away from home, during travel for business or pleasure, many different laws can come into play and significantly affect your rights.

     The entitlement to compensation for injuries and death during travel by air are governed by special rules and involve particular legal challenges.  These can further vary depending on whether the flight is commercial or private, domestic or international, over land or over sea. 

     Similarly, the right to compensation for injuries and death occurring aboard a cruise ship or during a cruise vacation are governed by special rules involving still other legal challenges, many of which are antiquated laws dating back over a hundred years.

     In all cases involving travel and/or recreational pursuits especially, potential limitations, impediments and obstacles to an injured passenger’s legal right to receive just compensation lurk in the fine print of travel documents, tickets, form “releases,” “waivers” and “liability limitations.”  It is therefore especially important in such cases that you retain a lawyer experienced in cases involving accidents like yours.

     WHAT TO DO IN THE EVENT OF AN ACCIDENT.

     By their very nature, injury-causing accidents afford little opportunity for the victims to do anything immediately for their own future protection.  But there is much you and your family and/or travel companions can start doing within days of an accident to protect yourselves.  Here are the three best steps you can take.

     1. Preserve documentation.
     Jot down notes as soon as possible after the event to record your observations.  Witnesses often want to help: take down their names and contact information.  Safeguard travel documents, take pictures with your camera or cell phone, keep receipts, and don’t delete or throw anything away.

     2. Keep a journal.
     In the days and weeks following, keep track of all events related to the accident and its aftermath by writing them in letter-form to your lawyer.  Even if you have not yet obtained representation, this exercise will remind you to pay attention to the detail you will need to recall and explain later in a deposition.  Plus, by addressing your notes to your future lawyer, you will be recording much useful information in a confidential format.

     3. Do not try to represent yourself.
     Even lawyers should heed this advice!  Accident victims and their families are often approached by employee representatives of a responsible party (e.g., airline or cruise line) in the wake of an accident.  Take their names and contact information, but do not engage in conversations or negotiations with them, and do not sign anything.  Under no circumstances should they be permitted to interview you.  You can and should, however, cooperate with law enforcement.  If you are not sure of the affiliation of the person who wants to question you, ask for clarification and to see identification.

     THE IMPORTANCE OF GETTING THE RIGHT REPRESENTATION.

     No matter how or where the accident occurs, you need help of all kinds, and you most certainly need a good lawyer.  Protect yourself and your family by taking steps as soon as you are reasonably able in the wake of an accident to retain the lawyer who will be your counselor and advocate from start to finish.  It is imperative that you have competent legal counsel as soon as possible to start looking out for you, ensuring you waive none of your rights, and begin a proper investigation before crucial evidence disappears and eyewitness memories fade.
As with hiring any kind of professional, the time you spend searching for the most effective legal representation is time well spent.  The ultimate success of your case begins with a successful relationship between you and your attorney.  There are many lawyers who are competent, but not all are right for you or your case.  Worse, there are many lawyers who will make great efforts to persuade a potential client to commit to hiring them, and yet they are not willing to give the case the attention and resources it requires for maximum recovery.

     WHAT TO ASK BEFORE YOU HIRE YOUR LAWYER:

     1. How many cases does the attorney handle at any one time?  If you are one client in a hundred, you can expect to be treated as such.  A lawyer who is spread too thin cannot do justice to a challenging case.

     2. Who will be doing the lawyering on your case?  The attorney you hire may not be the one actually doing the work, dealing with opposing counsel and the court, or accompanying you to court.  Get clarification before you sign a representation agreement.

     3. Has the attorney had specific experience representing clients in cases with issues and challenges such as those presented in your case?

     4. How will the attorney’s time be compensated?  Most lawyers representing accident victims will agree to be paid for their services on a contingent fee basis.

     5. Will the attorney advance case costs?  Be mindful of the difference between costs and attorney fees.  Attorney fees refer to the compensation the lawyer earns for his or her services; costs are paid out of pocket by the attorney and/or client in preparing the case, and can be quite significant.  Ask whether you will have to advance any costs up front.  If the attorney advances costs, will you have to reimburse the attorney if there is no recovery?  Attorneys vary in their practices regarding costs.  Some, like Injijian Law Office, APC, advance all case costs, and recover them only when there is a recovery for you.
  
     When interviewing the attorney, make an effort to answer the attorney’s questions honestly and completely.  A good attorney will ask many questions in the initial interview, and those questions can provide an excellent indication of the attorney’s interest in your case and in maximizing your compensation.

     DO NOT DELAY IN SEEKING REPRESENTATION!

     Finally, and most importantly, there are absolute deadlines by which you must assert your right to a legal remedy.  These deadlines vary from case to case, and they are very strictly enforced, meaning that if you do not act before the deadline you will be forever barred from obtaining compensation for your injury.  Moreover, most lawyers will want sufficient time to investigate your case before committing their efforts and resources to representing you, so you should begin your attorney search early to ensure you have maximum options.

© 2012 Injijian Law Office, APC

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.