Bike law basics: STFU

May 28, 2020 § 17 Comments

Cyclists are pretty good at a collision scene when it comes to refraining from admitting fault. This is in no small part because the vast majority of the time it’s the driver that was negligent, not the person on the bicycle.

However, what do you do post-collision? What do you do in the hospital when the cop calls or comes by to take your statement? What do you do when you get a friendly call from the friendly insurance adjuster just friendlily checking on your “condition” and asking a few friendly questions about what happened? What do you tell friends and family who want to know what happened?

With regard to law enforcement, it’s crucial that you tell them everything as thoroughly as you can for the purposes of the traffic collision report they’re going to write. It’s also important that you not make things up. If you don’t recall, it’s important to say so, because gaps can often be filled in with evidence or with deposition testimony from witnesses, from the defendant, or from crash reconstruction. Inserting what you thought happened rather than what you saw and recall, though, creates a whole bunch of problems later on if the facts contradict your story or if you change your story.

But what about the friendly adjuster who is calling with a few friendly questions? In this case it’s important to remember the following lovely Russian proverb:

The first thing you do, is you shut up. And after you get through shutting up, you shut up some more.

Russian Granny

Why?

First, the driver’s insurance company is not your friend. They are your mortal enemy when its comes to getting paid for the injuries and damages caused by the motorist who hit you. Nothing you say will be used to your benefit, and everything you say that can be used against you, will be.

Second, you have no obligation to talk to them. Adjusters love to make it sound like you should, or you’re supposed to, or sometimes the creepy ones will insinuate that you must give them your version of events. Fact: You don’t have to tell them shit and you shouldn’t. The only thing you should do when the driver’s insurance company calls is get a) The name and number of the adjuster b) The name of the insurance company 3) The claim number. That’s it.

Don’t be faked by them sympathetically calling to find out “how you’re doing.” This is their first attempt of many to show conclusively that you weren’t hurt at all or that you weren’t hurt as bad as you claim later. Never, ever tell an insurance adjuster anything about your injuries when they first reach out to you.

Third, as tempting as it is to tell your side of the story to a sympathetic listener, especially when the common scenario has arisen that some jerk hit you and then didn’t apologize, didn’t call EMS, didn’t ask how you were, and immediately began lying to the cops about what happened, you can be pretty angry and feel badly wronged. It’s natural to want the other side to hear what really happened, and for the adjuster to know you’re pissed about the shoddy behavior of their insured.

But you know what? That’s what they want you to do and it’s why they speak as friendly, sympathetic folks who just want to “get your side of the story.” Even if you handle the claim on your own, you should never, ever recount your side of the story to the adjuster until you’ve had plenty of time to reconstruct it with a copy of the traffic collision report, with witness statements, with review of the damage to your bike/clothing/equipment, and with your own recollections.

Fourth, speed is your enemy and it’s the ally of the bad guys. The more quickly the insurance company can lock in a confused narrative, an ambiguous statement, or anything that even remotely suggests fault on the part of the cyclist, the more easy their battle later on. By the same token, you only benefit by moving slowly. You just got hit by a 5,000-lb. car, remember? You’ve been traumatized, hospitalized, and are simply trying to resume some semblance of normality, and sorry, the “needs” of the enemy insurer are not on your priority list. You’ll have plenty of time at a later date to set forth your side of the story, and it must be on your timetable, not theirs.

Keep in mind that their “rush” is wholly fake, because in California there is a 2-year statute of limitations for bodily injury claims. What possible reason could there be for their “rush” to get information?

So what do you say when they call? Nothing at all. Get the info I mentioned above, then hang up. You don’t have to be polite, nice, apologetic, nothing. If you have to say something, tell them not to call you again as you intend to hire a lawyer.

The last and perhaps most difficult place to STFU has to do with friends and family. Everyone wants to know what happened, and if you hire a lawyer, the nosier among them will want to know the status of your case. The Perry Mason wannabes, or worse, your actual lawyer friends, will want to know the guts and details of the case.

This is another great place to practice shutting up some more. The only person with whom your communications are confidential is your lawyer. Friends and family, with the exception of your spouse (not your girlfriend/boyfriend), share no confidentiality for purposes of your case. This means that in deposition you will be asked whom you’ve spoken with the case about, and you’re required to name those people.

Woe to you if they are anyone other than your spouse or lawyer, because those people can then in turn be deposed and there’s zero guarantee they will help your case. In fact, they will often greatly harm it because they’ve misremembered what you said, or they didn’t understand it in the first place. Don’t expose your claim to the potentially damaging testimony of friends and family who suddenly find themselves in the crosshairs of experienced defense counsel.

So what’s the best way to handle these inquiries? Simple. “My lawyer instructed me to discuss this with no one. I can’t talk about it.”

I’ve yet to hear of a client using this line and have anyone take a second stab at prying. It really works.

Silence is well-known to be golden. Now you know why.

END


Resist, occupy, stick it to the man, etc.

July 8, 2017 § 27 Comments

I had one the nicest things happen to me yesterday that’s ever happened in my professional career. A group of friends who had been wrongly pulled over by a L.A. County sheriff’s deputy, then harassed, then wrongly cited for obeying the law, invited me to a thank-you dinner.

The thank-you was because I defended all eleven of the sixteen defendants who decided to fight the bogus charges. I’d like to say that everyone was acquitted due to my amazing legal skills and brilliant courtroom wizardry, but with the exception of one actual trial, all of the cases were dismissed because the citing officer failed to appear.

Of course nothing is as simple as it sounds. Deputy Castro, the outrageous and offensive cop who wrote the tickets, did appear once, for the first trial. With the help of expert testimony from Gary Cziko, and on-deck help from Geoff Loui, and due to the deputy’s confusion, dishonesty, misrepresentation, and ignorance of the law, in that first trial the defendant was acquitted.

Deputy Castro was amazed and even a bit angry when the judge ruled for the cyclist; we were kind of shocked as well. It’s not often that the court puts on a full trial, replete with expert witnesses, to fight a bike citation that carries no DMV points and that the People have already offered to settle for fifty bucks.

That one small win had big consequences for the rest of the defendants and for the cop. Deputy Castro, shortly thereafter, was transferred out of the traffic division. You can imagine that the captain was not pleased. Castro had called in a helicopter and five additional squad cars to write up the sixteen cyclists. Additionally, most of the citations had to be amended because Castro had put down the wrong location of the violation. When you tote up the officer time, helicopter time, squad cars, time spent processing, then amending the tickets, it was a significant action on the part of the department given the minor nature of the “violation” of CVC 21202a.

Deputy Castro looked foolish to the court as she lied and contradicted herself under cross-examination, but you have to think that where she really lost face is with her fellow deputies — going to all that trouble to call out so many officers to write a stupid bike citation that she couldn’t even make stick. Keep in mind that cops have pride about their work. No policeman, with the possible exception of the Thank-Dog-He’s-Gone-Deppity-Knox, takes pride in being known as a bike ticket violation writer. It’s drudgery, has zero cachet, garners zero professional respect, and is only done when there is either (a) absolutely no other law to enforce or (b) when the city council has demanded a cyclist crackdown. (a) and (b) almost always occur in tandem …

In the short term, the willingness of the cyclists to challenge these trumped up charges led to one terrible cop being booted from the traffic beat. In the long term it reinforced to the Lomita Substation that there really are more important law enforcement issues in Rancho Palos Verdes. It communicated that with limited resources, the department would be well advised to go pick on someone else, as these fake citations will be fought tooth and nail.

The cyclists who chose to fight instead of pay had to “waste” time and energy in contesting the charges. Compared to the settlement offer of $50 and no DMV points, it might seem like a waste; each defendant had to go to court twice: Once to plead not guilty, and once to appear for trial. But it wasn’t a waste, far from it. It educated the court, it educated the sheriff’s department, and it empowered cyclists to shift gears from being victims to being advocates.

In addition to fighting all eleven tickets, the defendants re-calendared their trial dates so that in the event one of them lost, we’d still have the opportunity to appear again. Since traffic court judges rotate, that increased the chance of getting a different judge and it would have forced Deputy Castro to appear eleven separate times. The one trial we did took well over an hour; that’s a bunch of overtime the department would have had to pay.

If you compare the time and money that was spent fruitlessly trying to convince the Palos Verdes Estates and Rancho Palos Verdes city councils that cyclists are traffic with legal rights, with the the time and money that was spent fighting the tickets, which successfully changed personnel and policy, it was the best advocacy imaginable. We spent hundreds of person-hours at city council meetings only to be beaten down and targeted by crazypants trolls. The public records request (publication forthcoming) I did on Robert Chapman, local PVE sillypants and bike hater, only confirmed that traditional political advocacy doesn’t work very well on the hill. Sometimes you have to suit up and go to fuggin’ court, even when it’s “only” traffic court.

Contrast our political advocacy with the effectiveness of fighting bogus tickets. The cops don’t show up, the tickets get dismissed, and everyone realizes it’s a shit-show, including the police, who are now more reticent to waste time writing the stupid citations in the first place. It dawns on everyone that the PV Peninsula has problems that are more significant than 21202a violations and bicycle stop sign tickets.

Unfortunately, there are still far too many cyclists in the South Bay who are willing to pay the reduced fee and get on with their lives. It’s too much pain and effort to re-calendar, go down to court twice, and deal with the whole headache. So last night, at the thank-you dinner that was ostensibly for me, I took the opportunity to thank all of the people who were willing to stand up for themselves and for others as well. And if you don’t mind, I’ll take this small space to thank them again.

END

———————–

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Resist, occupy, stick it to the man, etc.

July 8, 2017 § 27 Comments

I had one the nicest things happen to me yesterday that’s ever happened in my professional career. A group of friends who had been wrongly pulled over by a L.A. County sheriff’s deputy, then harassed, then wrongly cited for obeying the law, invited me to a thank-you dinner.

The thank-you was because I defended all eleven of the sixteen defendants who decided to fight the bogus charges. I’d like to say that everyone was acquitted due to my amazing legal skills and brilliant courtroom wizardry, but with the exception of one actual trial, all of the cases were dismissed because the citing officer failed to appear.

Of course nothing is as simple as it sounds. Deputy Castro, the outrageous and offensive cop who wrote the tickets, did appear once, for the first trial. With the help of expert testimony from Gary Cziko, and on-deck help from Geoff Loui, and due to the deputy’s confusion, dishonesty, misrepresentation, and ignorance of the law, in that first trial the defendant was acquitted.

Deputy Castro was amazed and even a bit angry when the judge ruled for the cyclist; we were kind of shocked as well. It’s not often that the court puts on a full trial, replete with expert witnesses, to fight a bike citation that carries no DMV points and that the People have already offered to settle for fifty bucks.

That one small win had big consequences for the rest of the defendants and for the cop. Deputy Castro, shortly thereafter, was transferred out of the traffic division. You can imagine that the captain was not pleased. Castro had called in a helicopter and five additional squad cars to write up the sixteen cyclists. Additionally, most of the citations had to be amended because Castro had put down the wrong location of the violation. When you tote up the officer time, helicopter time, squad cars, time spent processing, then amending the tickets, it was a significant action on the part of the department given the minor nature of the “violation” of CVC 21202a.

Deputy Castro looked foolish to the court as she lied and contradicted herself under cross-examination, but you have to think that where she really lost face is with her fellow deputies — going to all that trouble to call out so many officers to write a stupid bike citation that she couldn’t even make stick. Keep in mind that cops have pride about their work. No policeman, with the possible exception of the Thank-Dog-He’s-Gone-Deppity-Knox, takes pride in being known as a bike ticket violation writer. It’s drudgery, has zero cachet, garners zero professional respect, and is only done when there is either (a) absolutely no other law to enforce or (b) when the city council has demanded a cyclist crackdown. (a) and (b) almost always occur in tandem …

In the short term, the willingness of the cyclists to challenge these trumped up charges led to one terrible cop being booted from the traffic beat. In the long term it reinforced to the Lomita Substation that there really are more important law enforcement issues in Rancho Palos Verdes. It communicated that with limited resources, the department would be well advised to go pick on someone else, as these fake citations will be fought tooth and nail.

The cyclists who chose to fight instead of pay had to “waste” time and energy in contesting the charges. Compared to the settlement offer of $50 and no DMV points, it might seem like a waste; each defendant had to go to court twice: Once to plead not guilty, and once to appear for trial. But it wasn’t a waste, far from it. It educated the court, it educated the sheriff’s department, and it empowered cyclists to shift gears from being victims to being advocates.

In addition to fighting all eleven tickets, the defendants re-calendared their trial dates so that in the event one of them lost, we’d still have the opportunity to appear again. Since traffic court judges rotate, that increased the chance of getting a different judge and it would have forced Deputy Castro to appear eleven separate times. The one trial we did took well over an hour; that’s a bunch of overtime the department would have had to pay.

If you compare the time and money that was spent fruitlessly trying to convince the Palos Verdes Estates and Rancho Palos Verdes city councils that cyclists are traffic with legal rights, with the the time and money that was spent fighting the tickets, which successfully changed personnel and policy, it was the best advocacy imaginable. We spent hundreds of person-hours at city council meetings only to be beaten down and targeted by crazypants trolls. The public records request (publication forthcoming) I did on Robert Chapman, local PVE sillypants and bike hater, only confirmed that traditional political advocacy doesn’t work very well on the hill. Sometimes you have to suit up and go to fuggin’ court, even when it’s “only” traffic court.

Contrast our political advocacy with the effectiveness of fighting bogus tickets. The cops don’t show up, the tickets get dismissed, and everyone realizes it’s a shit-show, including the police, who are now more reticent to waste time writing the stupid citations in the first place. It dawns on everyone that the PV Peninsula has problems that are more significant than 21202a violations and bicycle stop sign tickets.

Unfortunately, there are still far too many cyclists in the South Bay who are willing to pay the reduced fee and get on with their lives. It’s too much pain and effort to re-calendar, go down to court twice, and deal with the whole headache. So last night, at the thank-you dinner that was ostensibly for me, I took the opportunity to thank all of the people who were willing to stand up for themselves and for others as well. And if you don’t mind, I’ll take this small space to thank them again.

END

———————–

For $2.99 per month you can subscribe to this blog and get none of the news that’s fit to print but all the news that’s fun to read. Click here and select the “subscribe” link in the upper right-hand corner. Thank you!

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