Ready For Trial

Drunk Driving & Personal Injury Cases – Expert Network Interview November 7th, 2013

October 28, 2013

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Board Certified DWI/OUI Attorney Mike Bowser discusses drunk driving and personal injury cases, the challenges of getting in front of a jury and getting a good verdict versus accepting a settlement, and how to get quality legal help when you need it.

Teddy: Local attorney Michael Bowser is joining us in studio, good morning counselor, how are you?

Mike: Good morning Ted, how are you?

Teddy: You’ll forgive me right, it was Maria, we had to talk to her, she woke up at 4:45 just to talk to us.

Mike: That is a hard act to follow.

Failing Field Sobriety Testing

Teddy: Not that difficult. I think you can pull off. Hey, last time you were here we did a segment that had people talking for weeks afterwards. You actually put me through a sobriety field test and I flunked it miserably.

Mike: The standard field sobriety test, two out of the standard three. You were asked to complete two and you definitely failed one.

Teddy: I’ve been a failure in a lot more ways. How have you been?

Mike: Extremely busy, I bought a new car. It’s a hybrid and I was tracking my miles. I did about 2,300 miles in three weeks between 19 courts and two states. I actually had to drive through Vermont to go from one to the other. On the road quite a bit; very busy in court. A lot of my courts take me pretty far away early in the morning so I haven’t been able to get in here every Thursday as I would wish.

Board Certified DWI/OUI Attorney

Teddy: Well, we’ll take your visits when we can. For those not familiar with you, you are a certified DUI attorney, correct, one of only a handful in the area and you have offices both in Massachusetts and New Hampshire so you can practice across state lines, correct.

Mike: I spend about half of my time in New Hampshire, half of my time in Massachusetts. I’m one of three board certified DUI defense specialist practicing in Massachusetts; one of only two in New Hampshire. That number is growing there’s probably just over 50 in the country now that have that board certification.

Legal Responsibilities and Remedies in a DWI/OUI Accident

Teddy: All right, and usually, when you join us, I always like to get you dragged into some current events topics that get me thinking. You just rolled your eyes there. There was a fatal car accident in Lowe about a week and a half back. My sources tell me that not only was an incredibly high rate of speed a factor, but that alcohol was a factor as well. Let’s take things from a hypothetical situation. Somebody who has been drinking and driving an automobile, if they become a casualty, if they died a victim in that accident, the legal case ends, right? You can’t obviously charge a dead person with anything.

Mike: Correct. That’s quite often you see fatalities involving drivers who are impaired [or] under the influence and no charges are brought. There’s no remedy once that person has passed.

Teddy: How about a passenger in that vehicle, is the passenger who gets in the vehicle with somebody who has been drinking or under any kind of influence, do they face any type of legal responsibility?

Mike: Typically, no. Unless there is a situation where the passenger has just knowingly handed over the keys to a car with full knowledge of that person is impaired [and] dangerous, but otherwise I would say no.

Teddy: What about somebody that would try to leave the scene of such of an accident?

Mike: As a driver, I’ve represented dozens and dozens of folks who were charged with either conduct after an accident, which is what they refer to that charge in New Hampshire as. Where leaving the scene of a personal injury or leaving the scene of property damage. The law requires in both states that if you’re involved in any accident involving property damage or personal injury as a driver, you have to remain on the scene and make yourself know by way of name, address, registration and insurance information. You’re supposed to stay put and provide that information not only to the other involved parties, but to law enforcement.

If you fail to do so then you’ll find yourself charged with leaving the scene or conduct of an accident.

Responsibility for Property Damage

Teddy: Now, that’s the most serious case. Who among us hasn’t parked a car in a mall parking lot or in a supermarket and come back to find a dent, scratch, a little paint on the door. Does it matter the level of damage?

Mike: There’s a particular amount of damage. For instance in New Hampshire, I believe it’s $500. I had the experience of being outside the Derry District Court and there’s a very nice diner called, I think it’s called Mary Ann’s right on the main trail.

Teddy: I love Mary Ann’s.

Mike: Of course. I take it upon myself to go get breakfast after court that morning. I’m driving down looking for a parking spot and my mirror clips the mirror of a very nice Porsche. Of course, I chipped the side mirror of that Porsche. I parked my car went inside Marian’s and announced to the crowd “Who owns the Porsche?” Because my concern was that I just did some damage to this vehicle and it’s my responsibility to let them know. They were very happy that I came in and did that.

Teddy: You found the person.

Mike: I did. They were actually seated at a booth having their breakfast that morning.

Teddy: How about in the case of what you’re say in a large parking lot, part of a plaza. Does it suffice to leave a note with your information and a cell phone number?

Mike: The law would expect you to and that person is going to follow up with you and you’re going to provide them that insurance information. I don’t think you would find yourself charged with a crime if you did that. I’ve seen it where somebody does exactly that, they bump somebody. They don’t think there’s damage there, there might be some paint scratches, [so] they leave. Some other citizen, of course, writes down their plate number and calls it in and they do find themselves charged with just that particular offense. Yes, regardless of the level of damage, if you’re causing property damage.

In the Commonwealth at least, if there is damage to another piece of property, you do have to make yourself known to that owner or to the police.

Teddy: It is 8:01 here on 980 WCAP. We’re skipping the ABC Network News at the top of the hour, chatting with attorney Mike Bowser, a member of our expert network. All right, I’ve dragged you into the current events things. What else is going on out there?

Mike: I’ve had some other cases other than drunk driving recently. I’ve been involved in some drug possession matters, some other types of criminal cases. The civil practice is certainly busy. Went through a flurry of cases recently where matters were scheduled for trial and then suddenly settled at the last moment. That’s on the personal injury side of my practice; I do quite a bit of that, so I’ve been very busy.

When Cases Reach a Settlement

Teddy: How many of those types of cases actually make it to, I guess, for lack of a better term, the trial part of the court. I know most cases will start with some type of court appearance and maybe even some depositions. How many cases settle versus how many get to the point where you start calling witnesses and testimony is actually taken?

Mike: The vast majority of cases settle and by way of example, a current event I was just reading this week [was] the claim against the Craft Group and the family, the owners of Gillette Stadium. They were supervising the consumption of alcohol on their premises, where two young ladies underage left and were killed in a drunk driving accident. That settled the day of trial, they were literally in the midst I believe of jury selection. The last three or four cases I’ve had, I’ve had a pretty serious motorcycle accident. I had a case involving a burn to a child, and a claim against an apartment building owner for very, very, hot water. Those cases went almost to the point of jury selection before they were settled and that’s typical. The insurance industry in general, they’re not interested in paying money to anyone and they certainly don’t make any money by giving it to my clients quickly. They like to hold on to their money as long as possible and so typically these cases go and then if you’re not prepared to try the case, if you’re literally not ready to go and not ready to actually present the case to a jury, you’ll never receive a settlement. You do have to do all the heavy lifting and work to get it to the that point. Then, I would say 90% of those cases settle.

Teddy: Is it safe to say there’s a little bit of gamesmanship that goes on there with these large entities? Be it insurance companies or perhaps a large corporation that a one person, an individual tries to take on. They figure if they drag the process out long, if they follow every possible step, that the attorney’s fees will get to the point where you’ll settle for something less than you might win in a court.

Mike: I’ve been practicing 18 years and I think that before I was a lawyer, many years before I was a lawyer, and if you talk to lawyers that are very experienced that have been around a long time, there was a different error of personal injury claims back in the ’70s and maybe the ’80s. Cases would typically settle, they would settle for more money. You would get better value for particular injuries. Then the whole dynamic changed with Reagan and Bush and the personal responsibility, and I think what the insurance industry does is they’re playing on the assumption that a jury most often – these are the cases that get tried – the verdict that comes back from juries tend to be very, very low. It is extremely difficult to get a jury of your peers to bring back fair money for a deserving injured party and you would think the opposite.

Teddy: That is fascinating because the public perception is the opposite. We hear the case of the McDonald’s coffee that burn somebody while driving and you think “Oh my God, I wish that would happen to me.” But you’re saying in the nuts and bolts when you’re down there, pretty much every single day in the trenches, that the juries are usually tougher on the individual.

Mike: If you don’t – as a personal injury lawyer, if I don’t – in the first two or three minutes of opening statement convince a jury that not only my client is deserving and worthy of their consideration — but [they’re] not a thief, a liar and a cheat. Because every juror comes into the box, hard wired ahead of time thinking that if you’re there on a personal injury claim, then you are a lair, a cheat and a fraud.

Teddy: That’s where we are now.

Mike: That’s the starting point.

Teddy: The perception is really what I just told you and the juries are actually using that against the claimants.

Mike: They’re using it against anyone. They just the way they think. That’s the way they come into the system and that’s what they put into the box. So, if you are not addressing that right upfront, immediately, you are going to lose any personal injury trial. The other side, the defense, the insurance industry, is absolutely aware of that and they’re banking on it. They’re banking on you’re going to get a bad result no matter how deserving your client is, no matter how good of a lawyer you are. Obviously, you need to be able to overcome that and actually try cases and get good results and get good verdicts. I’ve seen it shift slowly over the last several years. I think it’s coming back a little bit, finally, and I think rightfully so. But it’s a huge — I guess it’s a psychological exercise. When you walk into a courtroom, trying to convince jurors to do the right thing. It’s not easy. I think it’s one of the hardest things you can do as a lawyer, is to try a personal jury case to verdict.

Settlement vs. Trial

Teddy: Final question, what’s the process when you’re discussing with your client whether to settle or whether to go through and fight it? Who makes the call in that? Because I know, ultimately, the client gets the final say but with all your experience, you must have a pretty good idea whether you’re going to win or lose a case before you try it. Is that safe to say?

Mike: My process with any personal injury case and any client, is again, it is their decision, they are the boss and I work for them. But, when money is on the table, I describe it as fair money, if there’s fair money on the table, meaning, this offer is not an insult. It’s not unreasonable. It’s not as much as we would like to get, obviously, but it is fair. Then you absolutely need to consider taking it, because I have tried dozens and dozens and dozens of cases to verdict and I’ve gotten a goose egg, meaning the zero dollar verdict on a rear end collision. Now this is going back 15 years ago in Hillsborough County in Nashua as a very young junior lawyer. I tried a case to verdict and the decision from the jury was zero on a rear end collision. I left the court room with my head spinning and then I began to ask around and talk to some people who have tried more cases than I had at the time. And they were like, of course that happens, it happens all the time. I have had the opposite, I have had wonderful huge verdicts where I couldn’t have imagined I’d do that well, so I’ve had both. My job is to tell my client “Listen, we are in the range of what I consider fair money and if you walk away from fair money and set yourself up in front of a jury and take that risk, you’re assuming that risk. Because if that number comes back lower, that’s what you’re going to get.” So when we’re in the range of fair money, that’s when I tell people you really need to consider taking this as opposed to rolling the dice, and it is. It’s a risk anytime you stand up in front of a jury. If it’s in the range of fair money, I put on the reasonable hat and I say “Listen, based on my years of experience and my experience in front of juries, you need to think about taking this and here’s why.” If it’s not fair money, we’re going to try the case.

Practicing Other Types of Law

Teddy: Do you practice any types of laws besides personal injury and DUI specialty?

Mike: I obviously do other criminal cases, about 90% of my criminal practice is the drunk driving defense. I started off as a personal injury lawyer at 17, 18 years ago. I’ve always maintained that part of my practice. It’s a smaller part of my practice in terms of the number of cases, but still a significant part of my practice. So in that, those injury cases, premises liability, automobile-motorcycle crash cases, the gamut of personal injury matters.

Teddy: How important is it to get a specialist in this particular field of law? I know a lot of folks, they know a friend of a family who is an attorney or a friend has a family member who is an attorney, so they tend to want to be with somebody they know, but that person might not have the proper expertise in that. How important is that?

Mike: I think it’s critical. I think the most important and valuable thing a family lawyer can do for any client is find that client the very best attorney for the particular case. Drunk driving is a perfect example. It is fact specific. The legal issues, the technical issues, the scientific issues are incredibly intricate and many lawyers are equipped to handle it and do a very good job. Very few have the expertise needed and I think I get a lot of referrals from other lawyers and I think that those are just great referrals to get. In the same time, my personal injury practice, the trial experience that comes from hundreds of drunk driving trials relates perfectly to the personal injury because if you can try a case and you can stand up in front of a jury and finish it to verdict, that’s a valuable commodity as well.

Teddy: Attorney Mike Bowser, if folks want to get in touch with you, how can they do so?

Mike: Website is https://www.bowserlaw.com. Office is at Nashua, New Hampshire in Chelmsford.

Teddy: And you can listen Thursday mornings, we check in with Attorney Mike Bowser, a member of our expert network, periodically here on 980 WZAP. Thank you for the time sir.

Mike: Thank you.

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