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Month: February 2022

5 Steps in a Personal Injury Lawsuit

Written by Brandon Herrera on February 23, 2022. Posted in Personal Injury Case. No Comments on 5 Steps in a Personal Injury Lawsuit

Filing a personal injury lawsuit is not something most people take lightly. Since personal injury lawsuits are not the sort of thing you do frequently, knowing how the process works can be confusing for the uninitiated. You may have questions about how to file a claim, how long it can take to get through the process, and if you’re more likely to settle than battle it out in court.

When you suffer serious injuries due to another person’s carelessness, consulting a personal injury attorney is the best way to protect your rights. You don’t have to live with debilitating injuries that can impact your ability to work and live a productive life.

Part of any successful personal injury lawsuit involves understanding the steps in the process. Here is what you can expect if you decide to pursue a personal injury claim.

Step 1: Consult a personal injury attorney

Don’t wait to file a claim. New Mexico’s statute of limitations for personal injury lawsuits is three years. Selecting a personal injury attorney to represent you is the single most important step you can take to prepare. An online search for personal injury attorneys in Albuquerque reveals you have plenty of options. Choose wisely. Not all personal injury lawyers are created equally. Some have more experience than others, with proven track records for getting their clients fair compensation for their injuries.

Make sure you pick a legal representative willing to take the best approach to solving your problem. Most skilled personal injury attorneys can get settlements for their clients without resorting to lengthy – and stressful – court cases.

Step 2: Provide details about your case

Experienced personal injury attorneys thoroughly investigate the incident that led to your injuries as part of taking your case. They do this for two reasons:

To determine all liable parties; and
To collect all relevant evidence for proving your case.

As part of their examination of your case, a personal injury attorney should gather police reports, medical treatment records, and eye-witness accounts to prove your claim. All these things together help build a solid case, making your chances of reaching an out-of-court settlement more likely.

Step 3: Issue a claim for compensation

Following your personal injury attorney’s thorough review of all the evidence in your case, he or she will file a demand for compensation with the responsible party’s insurance company. Sometimes the process requires a single claim, like in the case of an automobile accident. Other times, multiple claims may be required if more than one party is liable for your injuries. Multiple claims are most common with product or premises liability cases.

As part of the claim for compensation, your attorney may provide:

Details (including photos) about your injuries.
Evidence collected from the accident scene that identifies the liable party.
Information about lost wages, medical bills, and other expenses related to your injuries.

A comprehensive accounting of your case can help produce a speedier resolution and avoid costly legal battles in court.

Make sure you choose an attorney willing to negotiate a fair settlement.

Step 4: Engage in negotiations

Most experienced personal injury lawyers push for out-of-court settlements to make the process easier on their clients. Plaintiffs in personal injury claims also prefer this route, when possible, to reduce negative publicity about the case. This is especially important for businesses and products that don’t want to tarnish their reputations.

Make sure your attorney doesn’t jump at the first offer for settlement without reviewing to ensure the proposal is fair to you. Sometimes plaintiffs, at the behest of their insurance companies, send lowball offers to see if they can convince victims to settle for less than they deserve. A top-notch personal injury attorney can spot the signs of these kinds of offers and push back to get you more.

If you reach an agreement, all that’s left to do is sign any formal paperwork and the process is complete.

Step 5: Go to court (if necessary)

When negotiations made in good faith fail, victims have little recourse except to push forward with their claims in the courts. Your attorney can advise whether taking your case this far is necessary. As part of the review process, they can provide an outlook for success.

Most reputable personal injury attorneys do not take on cases they know are unwinnable. Still, it is important to discuss how a court case might go before you agree to pursue it. Court cases can drag on and be emotionally and physically draining on victims. Make sure it’s worth it before you agree to put yourself through that kind of stress.

Finding an experienced personal injury attorney

When you’re the victim of someone else’s negligence, you need a personal injury attorney you can count on to pursue fair compensation. Bill Russell has represented clients throughout the state of New Mexico, standing up for victims who have suffered at the hands of another. Contact Bill today to schedule your free case evaluation. Call 505-218-7844 or request an appointment online.

Free Speech vs. Hate Speech in N.M.

Written by Brandon Herrera on February 16, 2022. Posted in Civil Law. No Comments on Free Speech vs. Hate Speech in N.M.

Americans enjoy free speech among their Constitutional rights. Free speech means you can express your views about a variety of topics without fear of persecution from the federal government. Some people think free speech gives them unlimited rights to say whatever they are thinking, regardless of how offensive or inappropriate it may be for their current audience. While the U.S. Supreme Court has repeatedly ruled in favor of free speech rights, there are times when free speech crosses the line to hate speech. When that happens in New Mexico, it can be possible to be prosecuted.

What is hate speech?

Under U.S. law, there is no legal definition for hate speech. The New Oxford Companion to Law defines the term as any “expression which is likely to cause offense or distress to other individuals on the basis of their association with a particular group” or incite violence against a group based on their race, religion, skin color, sexual identity, ethnicity, disability, or national origin.

As a rule, the First Amendment of the U.S. Constitution protects all speech, including that deemed hateful based on the above definition. The U.S. Supreme Court’s decision under Snyder v. Phelps provides an example of why hate speech is protected. Hate speech can only be criminalized when its use directly incites criminal activity or violence against a specific person or group.

Limitations of free speech in New Mexico

Legal and Constitutional scholars disagree about what constitutes unprotected speech in different ways. However, even the experts agree there are times when free speech does not protect you from civil or criminal liability. Here are a few times you can be held accountable for the words that leave your lips:

Blackmail
Child pornography
Defamation (including libel and slander)
Fighting words
Incitement to disregard the law
Obscenity
Solicitations to commit crimes
Verbal threats

Let’s use an example of a group of young men using derogatory terms for a Jewish person they encounter on the street. They use the slurs to incite others around them to launch a physical attack. Not only is this hate speech, but it also rises to the level of a hate crime in New Mexico.

The U.S. Constitution outlines the rights and responsibilities of citizens, including the right to free speech.

Hate speech on the job

Employees can find their free speech rights under fire if they use derogatory terms or slurs directed at coworkers. How is this possible? We need only go back to the words of the First Amendment to understand: “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the government for a redress of grievances.” The first five words are the key to how employers and some other entities can limit free speech: Congress shall make no law. In a nutshell, the First Amendment applies to the U.S. government only. The 14^th Amendment, which was added on July 9, 1868, extends these rights to state and local governments. Many people confuse their First Amendment rights because they do not understand fully how they work. While the local, state, and federal governments can’t prosecute you for speaking your mind, that protection doesn’t extend to employers and other private entities.

Let’s take for instance social media. If you post a hate-filled rant on your social media accounts that uses derogatory terms for people of color or another ethnicity, your employer could fire you. They may decide your behavior reflects negatively on their company and terminate your employment. The same holds for using ethnic or racial slurs against a coworker. Sure, you have the right to say whatever you want in the workplace. Your employer also has the right to part ways with you because of it.

You could not successfully sue your employer under either of these circumstances for violating your Constitutional right to free speech since they are a private entity.

When hate speech escalates to a hate crime

Sometimes hateful speech can escalate into a hate crime. When that happens, the Hate Crimes Prevention Act of 2009 applies. Congress passed this legislation, which was signed into law by former President Barack Obama. Violating this law qualifies you for a federal hate crime charge, which carries stiffer penalties. Hate crimes can be misdemeanors or felonies depending on intent and the criminal acts committed. Here are some examples of hate speech that can spiral into hate crime territory.

Assault and battery. If you assault someone simply because you do not like their disabled status, ethnicity, race, religion, or sexual orientation, you can be charged with a federal hate crime.
Destruction of property. If you destroy someone’s property solely because they are a different race, religion, ethnicity, sexual orientation, or disability status, you can be charged with a federal hate crime.
Stalking and trespassing. If you follow someone of a different color, race, religion, or other protected class, and trespass onto private property in your pursuit of them, you can face federal hate crime charges.

Penalties for hate speech and hate crimes

Penalties for hate crimes depend on whether you face state or federal charges. You may end up with fines, jail time, or probation. You can be sentenced to complete anti-racism or anger management counseling programs. The punishment is at the discretion of the court within state and federal hate speech and hate crime laws.

Seeking legal help for hate speech and hate crimes

If you are the victim of hate speech or a hate crime, it is imperative you consult with an attorney skilled in Constitutional law to protect your rights. Call Cameron & Russell at 505-218-7844 or contact us online to schedule your free case evaluation.

Wafulz, CC BY-SA 3.0 , via Wikimedia Commons

Product recalls don’t protect manufacturers from claims

Written by Brandon Herrera on February 9, 2022. Posted in Deffective Product. No Comments on Product recalls don’t protect manufacturers from claims

Product recalls don’t protect manufacturers from liability or legal claims when their products cause serious injury or death to consumers. Take the case of a Fisher-Price recall issued in 2019 for 5 million Rock ‘n Play Sleepers because of a risk of suffocation due to the product’s design. It took a decade and 50 infant deaths for the company to pull the popular product from circulation. Fisher-Price had been warned since 2009 of the high risk the product’s design posed to infant health and safety. Even after the recall was issued, only about 8 percent of the products were returned by consumers.

Fisher-Price reported its progress during the recall to the Consumer Products Safety Commission. Those reports, which usually are not publicly available, have been used in numerous lawsuits against the company by consumers who used the product and allege they never received a recall notification.

The recall debacle with Fisher-Price is one example of why product recalls do not protect manufacturers from product liability claims. Recalls can help prove a manufacturer has taken steps to correct a dangerous situation, but it doesn’t relieve them of all responsibility.

How product recalls work

Product recalls generally happen in one of two ways in the U.S. When manufacturers become aware of a design flaw or other defect in one of their products, or when a government agency alerts the manufacturer to the issue. Some government agencies, like the Consumer Product Safety Commission (CPSC), have the authority to issue a product recall without the manufacturer’s permission. Other government offices with the power to mandate product recall include the U.S. Food and Drug Administration (FDA) and the National Highway Traffic Safety Administration (NHTSA).

When manufacturers become aware of a problem, they can voluntarily disclose that information to the CPSC through the Fast-Track Product Recall Program. Section 15 of the Product Safety Act requires manufacturers to reveal safety issues. Once the CPSC has the information, it can opt for a recall within 20 working days of the date of the notification from the product manufacturer.

Once the recall is issued, all sellers and distributors of the product receive a notification. They must remove the product from their shelves immediately and post notices to their customers about the recall that include instructions on how consumers can return the product for a refund. Notifications also must warn consumers of the danger associated with the product. Some products that come with warranties have information on specific owners, who also may receive a recall notice from the U.S. Postal Service or via electronic communications.

product recalls — Product recalls do not automatically protect manufacturers in New Mexico.

New product safety requirements in New Mexico

In 2018, New Mexico adopted new product safety requirements and recall procedures for vehicle and product manufacturers operating within the state. Under the new legislation, recall procedures are now mandatory in New Mexico. Modifications in the law allow the Federal Consumer Protection Agency to take the following actions:

Remove or call for repairs to defective or insecure products.
Open investigations into product safety concerns.
Impose sanctions on manufacturing companies not in compliance with product safety standards.

Before these new procedures were adopted, product recalls were voluntary in New Mexico. Now, manufacturers doing business within the state’s borders must review their quality standards for products they produce and import to defend themselves against legal action that may arise because of product defects and other liabilities.

Holding manufacturers liable for faulty products

Recalls do not automatically mean a manufacturer is liable for a defect that may have caused injuries or deaths. Manufacturers can produce evidence that establishes they took all necessary steps to safeguard consumers, including issuing a voluntary recall when a problem was brought to their attention. Victims still must prove they became ill or injured because of the defect within the product to recover damages.

Conversely, a recall is not an immediate defense against product liability. Recalls do not always protect manufacturers from legal responsibility when consumers suffer serious injuries or die from using their faulty products. Product manufacturers must provide specific evidence to remain shielded from legal liability. Among that documentation is proof the consumer received information about the product recall before suffering injuries or death and that the notice sufficiently explained the danger of continued use of the product.

Consulting the product liability pros

The personal injury lawyers at Cameron & Russell have the experience needed to win your product liability case against manufacturers. We understand the nuances of product recalls and how some manufacturers try to use them to shield against liability. Phone us at 505-218-7844 or contact us online to schedule your free case evaluation today.