Evidence and Defense Base Act Cases - what does it take?
Evidence: Every type of proof legally presented at trial (that is allowed by the judge) which is intended to convince the Judge of alleged facts material to the case.
The key phrases of the definition that you should focus on now are, first, "convince the Judge." That is what you are trying to accomplish. Convincing the Judge of, second, "facts material to the case." In this article, I discuss what "facts material to the case" (read: your Defense Base Act case); you'll need in order to prevail in your case.
I realize that this is may be a tad deeper than many of you want to go. I get that. You're thinking - "Hey, I hired a Defense Base Lawyer to handle my DBA case. Let them worry about all this." I get it. But...... (It's always the "but." Whenever somebody says something that's followed with a but - you can usually discount everything that came before the "but"). I also cover the type of evidence that will help you win.
Getting the right evidence to your lawyer is sort of like making sure you have bullets in your gun. A gun without bullets isn't the way you want to approach a fire fight. It's the same with trials. Just saying.
I suggest you pull up a chair and stay awhile. I'm known for my straightforward, no B.S., tell it like it style. You'll see.
Don’t try this at home....
According to the MacMillian Dictionary, this phrase is used for warning someone not to try to do something that you are showing them. This phrase is often used by television presenters.
It also means that you should REALLY think twice before you try and represent yourself in your DBA case. Before you try this at home, with your DBA case, I suggest that you check out this article on the Top 10 Defense Base Act questions. (Question No. 2, on the list, and be sure to check Out Questions No. 3, 4 and 6, which are also about hiring a DBA lawyer).
You'll need the right evidence when it comes to winning your Defense Base Act case. In this article, I answer the following questions (and more):
"Strength vs. Weakness
Here is 'truth' with your Defense Base Act case. If you want to get what you are entitled to under the DBA - you have to be ready and able to take your case to court. You have to be prepared to win. Hoping for a good settlement is a fool's errand. You want to and need to negotiate from a position of strength. You don't do that unless you are prepared to win in court."
Defense Base Act Lawyer - Bill Turley
Why should I sweat the "small" stuff?
You may have heard the phrase “don’t sweat the small stuff”. With the Defense Base Act law, you can completely ignore that sage advice. All the details are exactly what the DBA insurance company is going to try to use to destroy you and your case.
That is why I wrote my book, Win Your Defense Base Act Case: The Ultimate Straight Talk Roadmap To The Medical Treatment and Money You and Your Family Deserve, which you can order for FREE. This “How-To” guide will break down and highlight all the “small stuff” to ward off the DBA insurance company's tricks and traps they are going to use to attack your credibility.
You need to “sweat the small stuff”, so to speak, because it will allow you to not have to try and "explain" issues and problems with your case.
The DBA insurance companies are going to do everything they can to make you out to be a liar.
The insurance companies know that DBA cases are won or lost based on credibility and how the judge perceives you. This just means you have to be prepared on every detail of your case.
"By failing to prepare, you are preparing to fail."
You might want to check out all the great 5 Star reviews on Amazon.com
5.0 out of 5 stars
The Babe Ruth of Defense Base Act Attorneys!!!!!
January 29, 2016
I cannot recommend highly enough, Bill Turley and his All Star Team of Major League DBA Attorneys. Your DBA case is not a battle that you want to fight on your own. These are experienced and seasoned Attorneys and Staff that will not back down from the powerful and mercenary Insurance companies. They will battle with you every step of the way to ensure a successful outcome to your DBA case. Order this book today and win your DBA case!
5.0 out of 5 stars
Read this if your a USG contractor who was injured overseas..........
July 20, 2015
This is a must read book. I was the guy who thought he would never get hurt and I also thought everything would be taken care of if I was injured. Read this book and know what is store for you after your injured. You will be very surprised like I was when it comes time to deal with the insurance company and how they will treat you and your family. Be prepared to lose everything you have if your not properly prepared.
5.0 out of 5 stars
A must read for overseas contractors
July 30, 2015
As some of you already know, getting DoD medical aid in Theater is based on "life, limb or eyesight"...and only if you have a CAC. Many of us have had to rely on local pharmacies and other means of medical care in country. Make sure you have an action plan to protect your health before, during and after your deployment. If you are injured, the Defense Base Act will protect you. If you read this book, you will definitely gain a full understanding of the " DBA system".
What is meant by "stronger" evidence?
The stronger evidence you have with your DBA case, the greater the chance of a favorable outcome in your DBA case. In this sense, stronger means "more probative" or "more persuasive." Meaning, evidence that will persuade your Judge in your case to find in your favor. And ultimately Awarding you benefits under the Defense Base Act.
Stated differently, this is the part about "convincing the Judge."
Why is the DBA insurance company is going to try and "taint" the Judge?
I say this like a mantra, that is, how important it is for you to tell the truth. At the end of the day, Judges are human. If the Judge thinks you are lying to them, the Judge won't like you. After all, do you like people that lie to you?
If the Judge likes you and respects you and believes you - - then the Judge will try and help you.
Not to suggest that the Judge is going to Award you benefits, just because they like you. You are also need evidence (the stuff I talk about later in this article) in order for the Judge to Award you benefits.
On the flip side, if the Judge doesn't believe you and like you, then all the evidence that comes in at trial will be tainted by this feeling the Judge has against you. This is why I say, believe and have seen in years of experience - if the Judge doesn't believe you - you will lose. Because of this, nothing is more important than your credibility.
The thing is, the Defense Base Act insurance companies realizes every bit of this. They know that if they are successful in destroying your credibility - the insurance company doesn't have to pay you benefits. Remember, it isn't personal to them. They are just trying to keep from paying you benefits.
After all, if you're not credible, you don't deserve DBA benefits. It's how they justify destroying people's lives.
It is with this backdrop that the DBA insurance company is going to pull out all of the stops to taint the Judge, so the Judge doesn't believe you. I calls these the DBA insurance company's "tricks and traps." It's all the ways that the insurance company will try and attack your credibility. It's how they trick you into doing stuff that will affect your credibility.
A huge part of my book - Win Your Defense Base Act Case is devoted helping you spot and avoid these DBA insurance company tricks and traps.
Be sure to claim your free copy of the 5 Star Book - Win Your Defense Base Act Case
This is an eye-opening book that gives you an insider's view of the Defense Base Act and how to beat the DBA insurance company. This book will take you step by step on how to avoid the DBA insurance company tricks and traps that are designed to destroy your DBA claim.
If you do one thing - you owe it to yourself to read the 5 Star reviews of the book on amazon.com!!
What are some rules of evidence in a Defense Base Act case?
Let's start off with some rules of evidence. You have to make a "prima facie" case. This means you have to produce enough evidence to prove your case. You must show you sustained harm (read: injury, pain, or harm) and conditions existed overseas that could have caused this harm.
Your testimony alone can meet this burden. This is another reason why you much be 100% honest with your testimony.
Usually you are going to need medical evidence that the conditions overseas could have caused your injury, pain, and/or harm. Technically you don't have to have "medical proof." But usually you do. For example, if you have testimony that a bomb exploded and the claimant's hand was blown off (sorry about the graphicness, but we are talking about a war zone); you would not need medical evidence in order to "prove" your case.
That all being said, you will need to obtain the medical evidence to prove your case. I talk about this more later in this article.
Why are most Judges are going to allow in most evidence?
In a jury trial, Judges are sometimes concerned about "tainting" the jury. There is that word, "taint" again.
There is less concern of that in a Judge trial. Because in a DBA trial, you get a Judge making decisions and weighing the evidence, not a jury. I'm not sure I agree with this logic of their being less of a concern of "tainting" the Judge, but that's the way it is. If I were the Judge, I might feel like they do.
On one level, the Judge is going to hear about this "contested" evidence just because it was raised during the trial.
What does this mean? "Evidence may be excluded if its probative value is outweighed by its prejudicial effect" (Federal Rules of Evidence)
Not to get all in the weeds with you. But, let's take a look at the Federal Rules of Evidence.
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
This is what is meant, by - evidence can be excluded if the evidence's probative value is outweighed by its prejudicial effect.
Putting all of this aside, what often happens oftentimes in DBA cases, is the Judge will allow into evidence this "prejudicial" evidence and say, "It goes to its weight, not to its admissibility." So, sometimes, rules of evidence be damned. Hearsay evidence, double hearsay evidence, is admitted. Usually the evidence is bad for you. Not good.
But, as usual, my job is to tell you like it is, not tell you what you may want to hear. This happens to be one of those times.
What is the Section 20(a) Presumption?
Once you do this, you have made your "prima facie" case. You then get what the law calls the Section 20(a) Presumption. 33 U.S.C. 920(a). The Section 20(a) Presumption is powerful. (I cover this more in my book).
Why is the Section 20(a) Presumption so powerful?
Once you meet the Section 20(a) Presumption, the burden shifts to the DBA insurance company (they call it the employer, but everyone knows we are talking about the DBA insurance company); to produce substantial evidence that the injury is not work related.
Please note, not just any evidence will do. It must be "substantial evidence."
What happens if the DBA insurance carrier fails to produce substantial evidence?
If the insurance carrier fails to produce this evidence, then you win. Meaning, you are Awarded benefits.
As a side note, this happens very, very infrequently. You can't depend on this.
What happens if the DBA insurance carrier does produce substantial evidence?
Then Judge will weigh the evidence submitted by both you and the insurance company. When this happens you have the burden of proof.
What does this "burden of proof" thing mean?
In baseball, you may have heard the saying, "the tie goes to the runner." Once the DBA insurance company produces substantial evidence, then "the tie goes to the DBA insurance company."
It wasn't always this way. And it sucks that the ties doesn't go to the injured overseas civilian contractor. But, that is the way it is.
Stipulations: will the DBA insurance company "stipulate" to the issue?
Every case is different. Sometimes the DBA insurance company will contest certain issues and other times they will “stipulate” to some issues. Meaning, they will agree that you can prove those issues. Until the DBA insurance company agrees or stipulates to any issue, you have to assume that you will need to prove the issue.
Usually the DBA insurance company will only stipulate to issues that you have documentation for. Meaning, if there is persuasive evidence on any particular issue and the DBA insurance company has this evidence, they may "stipulate" to that issue.
For example, if there is an incident report showing that you had a back injury and you received medical attention for it immediately and there is a medical report showing this, the DBA insurance may (the operative word here is "may") stipulate that you had an injury.
On the other hand, don't assume that the DBA insurance company is going to stipulate to anything.
What kinds of evidence are we talking about? Getting a little more into the weeds...
Do you have photos of your injury, injury incident, and/or injury location?
You should always document the effects of your accident and the progression of your injuries with pictures whenever possible, and email the photos to yourself to prove when the photos were taken. If you did not take pictures yourself, hospitals may have their own photographs of bruises, bleeding, stitches, and scars.
Whatever you have can be helpful. Maybe you co-workers have some photos. I have ever gotten photos of the injury location before. You never know unless you ask.
Do you have emails?
Email records are much better evidence than phone calls, as most phone conversations are not recorded and are up to interpretation by the court. Emails are time stamped and dated, and are a way to prove what was or was not said by your employer or insurer. Be sure to save both the emails you sent to the company as well as those that were sent to you.
Including emails from co-workers. Even emails, like I, "I hope you're back is feeling better," can help.
Do you have witness statements?
In addition to contacting people who saw the accident, you should gather statements from those who saw your injury during your recovery. You can ask them to send you an email or a written letter with their recollection of events, and ask them to describe what happened afterward. They may have seen you limp, saw what caused you to trip, and other details you may not remember.
That all being said, it is better if your lawyer reaches out to these people (or even the paralegal).
Do you have an incident report?
If you do not have a copy of your incident report or you failed to report your injury, you should remedy the situation as quickly as possible.
Not to suggest that you need an incident report to win your case. But it can be helpful.
How will you prove earnings?
You will need to prove how much you earned. You can request this information from your employer. Usually the DBA insurance carrier will produce it. However, it can be as easy as a W-2 and paycheck stubs.
If you worked overseas for more than a year before you got injured, it is usually pretty straight forward to determine your Average Weekly Wage (AWW).
If you worked less than a year, you may have a battle over your AWW.
What kind of medical evidence will I need?
Any in-theater medical documentation can be very helpful. Once you get home, you are going to need medical reports or at least good chart notes from your medical providers. It is best when you medical evidence is not stated as a conclusion. That is, it provides a persuasive explanation of the basis for your doctor's opinions.
Does your medical evidence link your medical problems due to your being overseas?
In law this is called "AOE-COE." Which is an acronym for "arising out of employment - course of employment." Meaning that your injury was caused and/or contributed to due to your being overseas.
Unlike most workers compensation programs, the DBA doesn't require your injury to have occurred or be caused due to you "work." Under the DBA it is enough that your injury occurred due to your being overseas.
For example, recreational and non-work injuries are covered and compensable under the Defense Base Act. These are called "Zone of Special Danger Cases." If your doctor has doubts about this, feel free to give your doctor this webpage. Since most doctors are familiar with State workers compensation and not the Defense Base Act, this might be necessary so your doctor understands that you have an injury that will be covered under the DBA.
Your medical evidence should tie in your current medical condition with your being overseas. That is, your current medical problems were caused or contributed to due to you being overseas. Putting aside the Section 20(a) Presumption, you want to make more than a prima facie case (although that is better than nothing), you want strong persuasive evidence.
Evidence that convinces the Judge.
Does your medical evidence address disability?
Your medical evidence needs to address the issue of disability. That is, are you currently able to perform you usual and customary job as an overseas civilian contractor?
Have you explained to your doctor what your job overseas entails?
Most doctors have no idea what working in a war zone is really like. For example, if you say you're a "security consultant," some doctors will think that your job is like a being "mall cop" or the security guard down at the local bank. Seriously. I have seen this before.
If you have to wear full-kit, your doctor needs to know that. If you have to be able to wear full-kit and carry your buddy out of a battlefield, then you need to tell them that.
Whatever the requirements of your job overseas are, then you need to explain that to your doctor.
What is difference between nature and extent of disability under the DBA?
The reason this is important is that your doctor will need to state whether you are "temporarily totally disabled" (read: you can't perform you regular job overseas while you are still being treated for your injuries and are still recovering) or "permanently and totally disabled (read: you are permanently unable to return to your regular job overseas).
You should understand the difference between "Nature and extent of disability."
Why do I need to carefully review the insurance company's doctor reports?
The insurance company doctors are going to raise issues poking holes in your case. In other words, they are going to try and undermine your medical evidence.
You need to carefully read their reports and make sure you have evidence that addresses each of these "undermines."
Make sure you address all of them. If you omit to address all of them, then if the Judge latches onto that one, you will lose.
Do you have evidence (or arguments) to oppose the Labor Market Survey?
Remember, if you have an unscheduled injury, the DBA insurance company will need to present specific jobs that you can perform in order to rebut the presumption that you are permanently and totally disabled. You are going to need evidence to oppose the Labor Market Survey (LMS).
You will need to be able to go through the LMS line by line, job by job. Be sure to check out this article on: what is a Labor Market Survey. I go into great detail on oppose the Labor Market Survey in my book. It alone is worth the price of the book. Wait a minute. I give the book away for free.
How do I see the "big picture" (and why is the "big picture" important)?
Okay, here goes with a football analogy. I am not a big fan of Tom Brady and the New England Patriots. But I respect them.
Brady has the quality where he sees the play develop on the field, before anyone else seems to. This "field vision." Brady uses this to anticipate and react and then make a play. It came from hard work. It isn't luck, I believe.
Similarly, you (or better yet, your DBA lawyer), needs to have "case vision." That is the ability to see the case, anticipate and react.
All along in your case, you need to be "reading" the DBA insurance company. From what the adjuster says, the DBA insurance company lawyer says, what is in the LS-207 Notice of Controversion, the defense medical reports, the Labor Market Survey, etc.
Before trial the Judge is going to make each side list their contentions and supporting evidence. However, impeachment evidence (evidence used to discredit you), may or may not have to be disclosed. Different Judges rule differently on this.
The idea here is that if both sided see what the other sides case is all about, that it promotes cases being settled. I think that is largely true. But that isn't the point I'm making here.
Sometimes, by the time each side reveals its contentions and evidence to the other side it is too late, to get the evidence you are going to need in order to win. Not always. But, sometimes it gets tight.
Because of this seeing the "big picture" or having this "field vision" is very helpful. Anticipating the DBA insurance company's "moves" and having evidence needed to counter their moves.
What evidence will I need to oppose the DBA insurance carrier's attack on my credibility and character?
As sure as the sun rising in the East and setting in the West, the DBA insurance carrier is going to attack your credibility and character. The first step, of course, is not giving the insurance carrier much, if anything to attack you with. I go into this in HUGE depth in my book - Win Your Defense Base Act Case. That is, avoiding the DBA insurance carrier's tricks and traps.
In addition, a large part of my book is how you are going to combat the DBA insurance carrier's attacks on your credibility and character. I go into great detail, with a step by step guide.
YOU MUST READ MY BOOK. Get your free copy of Win Your Defense Base Act Case here. Seriously.
Why do great trial lawyers say, "you never know how the evidence is going to come in?"
What is meant by this is that you never know how a witness is going to be in trial until they are testifying. The other lawyer can ask a line of questions that you or your witnesses don't answer well. Witnesses screw up. Lose their temper. Get caught in lies and half-truths. Prepare as you might, things can always go wrong.
You don't know.
On the flip side, the insurance company witnesses can always screw up. Stuff happens. At the end of the day, it's a big unknown. They call it the "hazards and risks of litigation" for a reason.
This is why you need to seriously consider settling your DBA case. Not to suggest that some cases don't need to go to trial.
Strength vs. Weakness?
Here is "truth" with your Defense Base Act case. If you want to get what you are entitled to under the DBA - you have to be ready and able to take your case to court. You have to be prepared to win. Hoping for a good settlement is a fool's errand. You want to and need to negotiate from a position of strength.
You don't do that unless you are prepared to win in court.
What if I need help right now?
Call 619-304-1000 or leave a message on this web page.
This isn't legal advice
Please understand these discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation.
In fact, I have tried to let you know why you shouldn’t and can’t do this.
Just because we have gotten great results in so many other Defense Base Act cases, doesn't guarantee in particular result in other cases. Including, your DBA case. Every case is different. In other words, your mileage may vary.
And at the end of the day, you just don’t know how the evidence is going to come in at trial.
We also offer a DBA Resource Guide, for more tips on collecting evidence and building your strongest case.