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Celebrating Cesar Chavez Day

Today, we celebrate and honor Cesar Chavez, an American labor leader and civil rights activist, and his commitment to social justice. Chavez’s work and that of the United Farm Workers — the union he helped found — improved pay and working conditions for farm laborers in the 1960s and 1970s, and paved the way for landmark legislation in 1975 that codified and guaranteed agricultural workers’ right to unionize, bargain collectively with their employers and vote in secret-ballot elections in California.

Learn more about Cesar Chavez and the Organized Labor Movement today at 11:30 am.

Webinar: Cesar Chavez and the Organized Labor Movement – History and Perspectives
March 31, 2022 @ 11:30 a.m. | FREE REGISTRATION
In this webinar, you will hear from individuals who knew and worked alongside Cesar Chavez, and those who work to continue his legacy. They will describe how Chavez’s life and work impacted the organized labor movement, and how that impact continues to be felt today.
Speakers: Ira “Buddy” Gottlieb, Carlos Perez, Cinthia Flores, and Emilio Huerta
Moderator: Stephanie J. Joseph

—

Blog post:
Today, we celebrate and honor Cesar Chavez, an American labor leader and civil rights activist, and his commitment to social justice. Chavez’s work and that of the United Farm Workers — the union he helped found — improved pay and working conditions for farm laborers in the 1960s and 1970s, and paved the way for landmark legislation in 1975 that codified and guaranteed agricultural workers’ right to unionize, bargain collectively with their employers and vote in secret-ballot elections in California.
Learn more about Cesar Chavez and the Organized Labor Movement today at 11:30 am.
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The Difference Between Personal Injury and Workers’ Compensation

Written By Christopher B. Dolan and Megan Irish

This week’s question comes from Kisha J. from San Francisco who asks: Hi, my friend Angelino is a garage door repair man, and he recently got hurt while on a job. While he was up on the ladder working on the overhead door opener, the homeowner put several boxes behind his ladder. He fell on them when he came down the ladder and broke his ankle. He said he has been off work for a couple of weeks now and is making a worker’s compensation claim. I think the homeowner has some responsibility too, because he would not have fallen and broken his ankle if he hadn’t put boxes behind him.  Is the homeowner responsible too?

Dear Kisha,

Your friend’s claim may be both a workers compensation claim and a third-party personal injury claim. The two types of claims are compatible and can be made simultaneously. In the most basic sense, a worker’s compensation claim is more limited in the compensation available, but it is often very quickly awarded, and there is no consideration of the injured party’s fault. Third-party personal injury claims often yield more compensation, but usually take longer and will examine the injured party’s own role in the cause of the injury and harm.  

The worker’s compensation system is a “no fault” system. So long as the injury occurred while a person was at work, it does not matter who caused the injury. One does not need to prove that the employer or co-workers did anything wrong. Even if the injured party did something wrong, they are still usually covered. The workers compensation system has limited coverage though and is only available to cover medical costs and replace a person’s lost wages. Workers’ compensation claims do not cover general damages.  

In a third-party action, when someone is at fault for doing something wrong, the harmed person can seek to recover both special and general damages. In a third-party action the injured party must prove that a third party was negligent, and that the third party’s negligence caused the injury. For example, failing to stop at a red light causing a vehicle collision would likely qualify as negligence by another that caused harm to the injured party. In such a case, special damages are available and cover, in very general terms, things the injured person has receipts for, such as medical bill and lost wages. Moreover, in a third-party action one can also seek to recover general damages, which are typically referred to as pain and suffering. The law includes physical and mental pain and suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress as elements of general damages. 

Generally speaking, third-party cases, are brought when someone other than the employer or coworker was negligent. The most common instances where an employee will bring a third-party action for injuries that occurred when they were working, are for defective products (action where a claim is made against the manufacturer of the product used to do a job), the injury was caused by a toxic or illegal substance, the employer did not carry worker’s compensation insurance, or the injury was caused by a third-party who was not a part of the company.

Workers Compensation and third-party personal injury claims can be brought at the same time. When they are, then the third-party claim may be required to reimburse the workers compensation claim. For example, if all of your friend’s medical bills have been covered in his workers compensation action and he makes a claim for the medical special damages in his third-party action, the worker’s compensation matter may seek reimbursement for what has paid out to your friend as replacement wages. The idea here being that the injured party should only recover his lost wages once. If he receives wage replacement from workers compensation, that is also later paid by the third party, it is only fair that the compensation system be reimbursed.  

While most jobs have worker’s compensation coverage, there are two categories of employees who do not receive coverage for injuries at work under a workers compensation plan. Those two special categories are interstate railroad workers and crew members on boats. The railway workers can bring an injury claim under the Federal Employers Liability Act, and vessel crew members can bring injury claims under the Jones Act.  

In this situation you’ve talked about the homeowner could face a claim as a third-party defendant. To bring a matter against the homeowner, the homeowner’s actions would need to be evaluated to establish if the actions were negligent. An attorney would need to evaluate the circumstances of your friend’s fall and see if there is a cause of action against the homeowner.  We wish your friend a speedy recovery.

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Who is responsible for Dangerous Conditions on Roadways?

Written By Christopher B. Dolan and Aimee E. Kirby

This week’s question comes from Ashely L.  from San Jose: My uncle Ralph was driving his motorcycle in an unincorporated area of San Jose when he lost control and went down. It appears that the road was unkept. I am trying to help my uncle, who doesn’t even have email and is not good with using the internet, with his case. The police officer said that the road should have had a sign and a barrier, because lots of accidents happen at that location where my uncle lost control. I am not sure how we go about proving the road caused my uncle’s accident. Does whomever own the roadway have insurance, like cars do to pay claims? 

Ashely, I am sorry to hear that your uncle was in the accident. The type of case you are describing is called a Dangerous Condition case. These are very complex legal cases, and they are not the kind of case that I advise that injured victims, or their families tackle alone. To prove a Dangerous Condition case, you must prove that the roadway was a dangerous condition, that the government entity who controlled or owned the road, knew or should have known about the dangerous condition, and that they had time and money to fix the condition, but did not. Your family would also have to prove that the dangerous condition in the roadway caused the accident. Dangerous condition cases can involve motorcyclist, runners on a highway, cars, trucks, or even bicycles. The Defendants in these cases are the cities or counties that own the road. 

It is important to document the scene immediately with photos if the injuries are serious. The first thing our law firm does is go to the roadway in question or use the police report to pull the location up on Google Earth. Often the police reports for accidents, wherein a roadway condition may have contributed to the loss, do not document the scene well, or even mention a dangerous condition that may have contributed to the accident. We have personally litigated a motorcycle collision wherein a pothole caused the crash, yet no pothole was photographed or even mentioned in the police report. In this case, a witness was able to describe what the motorcyclist hit, and what happen to him, as our client had no memory of the crash.  

After visiting the scene, the next thing your attorney should do is research the accident history through the TIMS database maintained by UC Berkley and issue a Public Records request of the county and city the subject roadway is in. The TIMS database allows you to enter in a county and city pull all accident history for the location by way of a map or a list. This can help us get an initial baseline on whether or not a dangerous condition can be proven. The number of accidents at a location, if it is higher than normal, goes to prove notice of the dangerous condition and that the location is dangerous. You want to look for similar accidents, so in your case you are looking for single vehicle accidents, as opposed to a sideswipe collision. This information is then verified with a public records request to Caltrans for the same data. The TIMS database is free, and so are public records requests typically. Remember, a court will only consider similar accidents in considering whether accident history is relevant to your case. 

Another thing you and your attorney should do is get public records request from the entity that owns or controls the subject roadway. These public records requests are usually tailored to government entity claims regarding the location, complaints, roadway work and maintenance, along with evaluations done for repair of the subject roadway such as pavement index reports or permit and bidding documents. Lastly, if the case is near commercial buildings or in a residential area, often our firm will hire a private investigator to conduct additional research. Long term business owners or homeowners may have taken pictures of your alleged dangerous condition. Depending on the type of dangerous condition, these business owners or property owners may have also attended City Council meetings and demanded action or emailed the city. There have even been instances where neighbors complained to the city on social media applications like Nextdoor, which can be used. 

Because these types of cases have strict guidelines regarding claim presentation and pleadings it is also advisable to seek counsel to investigate this for you. An attorney can gather this data and advise you of the likelihood of being successful in a dangerous condition case, very quickly. I hope your family continues to heal and you get answers as to what occurred that day for your uncle. 

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March 15 is Equal Pay Day

March 15 marks the day in 2022 when women finally catch up with what men were paid in 2021 #EqualPayDay. For every dollar a man makes, women, on average, only earn 83 cents. Women of color experience a much wider #WageGap. Black, Native American and Latina women earn 58 cents, 50 cents and 49 cents for every dollar a white, non-Hispanic man earns, respectively.  We cannot achieve #WomensEqualPay without ensuring women of color are supported and protected in the workplace. 

According to the history of the American Association of University Women, an analysis of newly released figures from the U.S Census Bureau and the Bureau of Labor Statistics shows that overall in 2020 women were paid just 83 cents for evert dollar paid to a man.

“In 2019, on average women took home 82.3 cents for every dollar paid to men, compared to 83 cents in 2020. But that number and the apparent change is misleading given the massive shifts in American labor force during the COVID-19 pandemic”. 

To learn more about the gender pay gap from AAUW, click here.

 California Labor Code 1197.5 and Labor Code section 432.3 contain California’s Equal Pay Act. These laws state no employer shall pay any employee at a wage rate less than an employee of a different sex or ethnicity performing substantially-similar work. Moreover, an employer may not base a wage differential on sex, ethnicity or another protected class. Instead, the employer must show valid and legal grounds for the difference in pay, such as merit, seniority, quality of production or a bona fide factor such as training, education or experience.

If you believe that you are being treated differently because of your race and/or gender, contact the Dolan Law Firm’s team of employment attorneys.

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Celebrating International Women’s Day

March is International Women’s Month and today Dolan Law Firm acknowledges our everyday heroes who work within this community. As a firm, we have more members who identify as women than any other gender classification/identity. The women in this firm are engines that make it possible for the DLF to provide justice, and make an institutional change, on a scale that exceeds expectations of what a firm our size could be expected to do.

The strength, power, loyalty, dedication, and determination, combined with the power each of our community members who identify as women brings to bear every day makes this a special and effective place. The insight and perspective often brought to bear in strategizing and executing our enhanced by this diversity. Today, and throughout this month, we wish to especially celebrate the powerful women who we have the honor of working with every day.

We appreciate your roles as a lawyer, mother, daughter, sister, friend, partner and colleague from running businesses to serving on boards, to working hard to change the world. Women empowerment is not just for today, it is for life.

International Women’s Day is observed annually on March 8th and celebrates the global “social economic, cultural and political achievements of women” according to the International Women’s Day website. Today also calls for action to advance gender equality. 

Even though women have made great strides towards equity, women’s fight for equal rights continues. The gender pay gap continues to impact women’s economic power. Gender discrimination and sexual harassment are still prevalent in the workplace. The Dolan Law Firm is committed to fighting for equal rights and justice for all. Contact us if you believe you have been discriminated against, sexually-harassed, or denied your rights at work. 

—

Here’s how to celebrate International Women’s Day in 2022: 

Theme

The campaign theme for 2022 is #BreakTheBias. The hashtag spotlights the individual and collective biases against women that fuel gender inequality. 

Pictures/Selfies

Pictures of people crossing their arms to strike an “x” pose on social media show solidarity with the theme of International Women’s Day 2022. 

Colors

Purple, green and white are the colors of International Women’s Month. 

For Additional Guidance and Resources, visit International Women’s Month website

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What Is The New Gun Law Being Considered in San Jose and is it Constitutional?

Written By Christopher B. Dolan and Matt Gramly

This week’s question comes from Jason P. from San Jose: I know you are personal injury lawyers but, read that you are also civil rights lawyers. I was wondering if you can answer my question on whether the new gun law in San Jose is constitutional?

Thanks for you question Jason. You are correct we are personal injury attorneys, as well as employment attorneys, and cover various civil litigation issues. At the same time, we wanted to share our thoughts on the question you have for us.    

The Second Amendment to the Bill of Rights in the Constitution of the United States of America is a single sentence:

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” 

Many outspoken proponents of the Second Amendment focus on the second half of that sentence while dismissing the first. But the first half of the sentence is of equal importance to the second not the least of which is because it includes the phrase “well regulated.”  

Every right we have as Americans is subject to regulation or limitation. There are limitations on our First Amendment rights to freedom of speech, the most familiar being that no one has the right to yell “Fire!” in a crowded theater if there is, in fact, no fire.  The Second Amendment is no exception. Ask any gun owner who lives in California about the State’s gun laws and you will surely get an earful about how overbearing, cumbersome and confusing they are. Gun owners in California are not legally permitted to buy many of the same guns that gun owners in Nevada or Arizona are. Gone are the days or ordering ammunition online and having it delivered to your home. Those purchases must now be made in person and require a background check. Similarly, California has no open-carry law for either handguns or rifles. Such activity is legal in 31 other states but is illegal within California.

Last week the city council of San Jose approved a proposed ordinance placing additional requirements on gun owners living within the city. This is the first law of its kind to be passed by any city in the United States. The new law would require gun owners to carry liability insurance to cover accidents and negligence. The law would also require gun owners to pay an annual $25 fee, the proceeds of which would be given to a nonprofit organization to fund crime prevention and assist victims of gun violence. It has been reported that approximately 50,000 to 55,000 households in San Jose own guns. The fee provision of the new law would generate somewhere around $1.3 million per year. Prior to last week’s city council vote, Mayor Sam Liccardo estimated that gun-related expenditures cost San Jose residents approximately $440 million per year.

At first glance, the new law (which has not yet taken effect) does not seem unreasonable or overly burdensome. Every person who operates a motor vehicle in the State of California is required to carry liability insurance for negligence and accidents. And every motorist is also required to pay annual fees to register their vehicle or renew their registration. There are bridge tolls and toll roads also that exclusively effect those driving cars and trucks and motorcycles.  

Critics of the proposed law, however, say that there is no Constitutional right to drive a car or truck, while the right to own firearms is actually enshrined in the Constitution. Their argument is that you cannot regulate or tax a right guaranteed by the Bill of Rights. Gun ownership has been heavily regulated for as long as the Second Amendment has existed and many of those regulations have been upheld by multiple courts, including the Supreme Court. Recently, California’s ban on high-capacity magazines, magazines that can hold more than ten rounds of ammunition, was upheld by a 7-4 ruling from the Ninth Circuit Federal Court as not placing too great a burden on gun owners or constituting an improper infringement on their Second Amendment rights.

As with most “new” gun laws and regulations, San Jose’s new proposal, which is expected to take effect later this year, will most certainly be challenged in the courts. In fact, Colorado-based National Association for Gun Rights filed a lawsuit the same day San Jose’s city council preliminarily approved the bill. The group filed for an injunction in U.S. District Court in San Jose. That lawsuit is pending.

California has been a hotbed of gun control laws and subsequent litigation in the courts ever since passage of the passage of The Mulford Act in 1967 by the state legislature and signed into law by then-governor Ronald Reagan. Prior to 1967 it was legal to carry loaded firearms in public. During the late 1960s The Black Panthers availed themselves of this right by conducting armed patrols of Oakland neighborhoods, keeping an eye on local law enforcement. The Black Panthers also regularly showed up at protests at various city halls and the statehouse fully armed. The Mulford act was carefully crafted to prevent The Black Panthers doing this, and it was successful in that regard.

San Jose’s proposed new law has no such racial targeting component or intent. But we will have to wait for several years and endure multiple court challenges to learn whether the new law is, in fact, Constitutional or not.

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February 2022

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I Was Laid-off because of COVID-19

By Christopher Dolan and Mari Bandoma Callado

“I was laid off, along with my whole crew, when COVID-19 first hit. I worked for a company that provided janitorial and building maintenance to a commercial building. Now, my company is hiring again. Can I reapply to my old job, or are they supposed to notify me if I can come back?  I have only found spotty employment, in the meantime, I would really like to go back to my old job.” – Ray B. from Concord.

Thank you for this excellent question, Ray. We are sorry you were one of the many people laid off from your position because of COVID-19.

As COVID-19 restrictions are generally being lifted, many businesses have opened back up and, thankfully, rehiring many of the people who had been placed out of work during the shutdown. Before the pandemic, California businesses without a collective bargaining agreement were generally unrestricted in their discretion to pick and choose which, if any, employees would be recalled to work following a layoff. However, during the pandemic, many cities adopted “right to recall” ordinances that restricted employer hiring discretion after a layoff. 

Last April, California followed suit by enacting Senate Bill 93, which created Labor Code Section 2810.08 which requires employers in certain industries (see covered employers below) to make written offers to employees laid off because of a reason related to the COVID-19 pandemic (e.g. public health directive, government shut down order, lack of business, a reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic). This law does not expire until December 31, 2024. 

Covered Employers

Covered employers generally include: 

  • hotels with 50 or more guest rooms;
  • private clubs that operate a building or complex of buildings containing at least 50 guest rooms;
  • publicly or privately-owned event centers of more than 50,000 square feet or 1,000 seats used for public performances, sporting events, business meetings, or similar events; 
  • airport hospitality operations that provide services related to the preparation of food or beverages for aircraft crew passengers, and to the public at an airport;
  • airport service providers that provide services directly related to the air transportation of persons, property or mail; and
  • employers that provide janitorial, building maintenance, and security services provided to office, retail, and other commercial buildings.

Covered Employees

To be protected by Labor Code Section 2810.8, an employee must have worked at least two hours per week by the covered employer, been employed by a covered employer for at least six months in the twelve months preceding January 1, 2020 and be separated from active service due to a reason related to the COVID-19 pandemic. Any employer of a covered enterprise must comply with the recall provisions regardless of the number of its employees.

Employers’ Obligations to Covered Laid-Off Employees 

  • Within five business days of establishing a position, a covered employer must offer its laid-off employees all job positions that become available for which the laid-off employees are qualified in writing.
  • A laid-off employee is “qualified” for a position if the employee held the same or similar position at the time of the employee’s most recent layoff with the employer. 
  • A laid-off employee who is offered a position has to be provided at least five business days from the date of receipt to either accept or decline the offer. We recommend responding in writing as soon as possible and keep a written copy of your acceptance. If your contact information has changed, please make sure to update your former employer with all current contact information to facilitate the employer contacting you and avoid missing a recall opportunity.
  • Simultaneous, conditional offers of employment may be made by the employer to more than one laid-off employee, with the final determination of which laid-off employee gets the position determined by seniority. Seniority is based on total length of service with the employer, not on the basis of job seniority. 
  • In the event that an employer declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone other than a laid-off employee, the employer is required to provide the laid-off employee with written notice within 30 days. The notice must specify the length of service with the employer of those hired in lieu of that recall and all reasons for the decision.
  • Labor Code Section 2810.8 also contains anti-retaliation provisions and requires employers to keep records for three years. The records must include the laid off employee’s full legal name, job classification at time of layoff, date of hire, last known residence, email address, and phone number, as well as lay off notices and all communications regarding employment offers made under Labor Code section 2810.8’s requirements.

Enforcement and Remedies

The Division of Labor Standards Enforcement (DLSE) has exclusive jurisdiction over the enforcement of Labor Code Section 2810.8. While there is no private right of action, laid-off employees may file a complaint for a violation of Labor Code Section 2810.8 with the DLSE, and the DLSE may bring a civil action in court. 

Remedies for violations include reinstatement, back pay, benefits, and interest on all amounts due and unpaid, Civil penalties may also be imposed, including $100 for each employee whose rights are violated, and liquidated damages of $500 per employee, for each day an employee’s rights have been violated. 

If you believe that your recall rights were violated, you may report the violation to the DLSE for investigation.  

City and County Ordinances

Cities and Counties may enact greater protections through local ordinances. Labor Code Section 2810.8 does not preempt right-to-recall ordinances adopted by multiple cities throughout California. Some of the cities and counties which have enacted such ordinances include Carlsbad, Glendale, Los Angeles County, Los Angeles City, Long Beach, Monterey County, Oakland, Pasadena, San Francisco, Santa Clara, San Diego, and Santa Monica.

If you believe that your employer used COVID-19 as a cover for discriminatory lay-offs during the pandemic, and/or if you have questions about whether Labor Code Section 2810.8 applies to you, please contact an employment attorney and/or the DLSE.

***

The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly.  The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

 

 

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What Documents Do I Need if I am Involved in a Car Accident and Need to Pursue a Lawsuit?

Written By Christopher B. Dolan and Taylor French

This week’s question comes from Peter L.  from San Jose: I have been reading some of your articles and they are very informative. I was wondering if you can tell me what type of documents I may need if am ever involved in an accident and if I need to hire a lawyer? 

Thank you for your question and reaching out, Peter. Dealing with the aftermath of a car accident can be an overwhelming experience. Most likely, the last thing on someone’s mind immediately following such a traumatic event is what documents are important or even necessary to obtain in order to pursue a personal injury lawsuit. However, it is extremely important to begin gathering and maintaining the following documents as soon as possible: 

  • Traffic Collision Report

If a police officer arrived at the scene of the collision, the officer mostly likely prepared a traffic collision report. This report contains important information related to the car accident, including the involved parties’ driver’s license and insurance information, descriptions of the weather and roadway conditions, statements from the parties and other witnesses, whether any traffic laws were violated and by whom, descriptions of any reported injuries or property damage, etc. If a traffic collision report was created, either a crash victim or their attorney, if they have one, will need to obtain it from the issuing law enforcement agency. The information needed to request a police report includes the date and location of the incident (this can be an approximate address or an intersection), the names of the parties involved, and the requesting party’s name and address. 

  • Medical Records and Bills

A person injured in a car accident should obtain all medical records and bills for any treatment related to the collision. Depending on the severity and the type of injuries suffered, the individual may need to obtain records related to emergency medical services (i.e., paramedic or ambulance services), emergency room treatment, primary care physician treatment, chiropractic care, physical therapy, pain management, pharmacy prescriptions, and treatment provided by other healthcare specialists. 

  • Photos and Videos

The injured individual should gather all photos or videos taken of the incident scene, the vehicles involved in the collision, and the injuries sustained as a result of the collision. It is becoming increasingly more common for homes or businesses to have security cameras that sometimes capture car accidents, so it is important to obtain this footage if it exists. It is better to act quickly to obtain this footage as it often gets deleted within a short period of time. If a camera is found in the surrounding area, it is important for the crash victim to communicate this information to their attorney so that they can send a letter requesting that the footage be preserved.  

  • Property Damage Estimates

If there is damage to one’s vehicle, as a result of the collision, it is important to maintain copies of any repair estimates, receipts for deductibles paid, and/or other documents related to the repairs. Typically, a body shop making repairs will take photos of the repairs to submit to the insurance companies, so these photos should be requested from the body shop or from the individual’s insurance company. 

  • Records Related to Lost Income

In a personal injury lawsuit, an individual can recover income lost as a result of a car accident. In order to recover the lost income, detailed proof of the claimed losses must be produced. For this reason, it is important to obtain proof of income via paystubs, direct deposit records, or other financial documents, as well as documents establishing how much time was missed from work due to the collision. 

  • Communications Related to the Collision

Following a car accident, it is likely that the parties’ insurance companies will begin to send letters or other communications to the parties. These letters should be maintained and provided to one’s attorney. Additionally, on occasion, a party or witness to the collision will text, call or email an injured party. If this happens, these communications should be preserved as well.

While falling victim to a vehicle collision can be both traumatic and stressful, it is important to try to remain as calm and clear-headed as possible so that all necessary documentation can be obtained. Retaining an attorney will, of course, ease the strain on an injured party following a car accident, but it is still crucial to gather the above documentation in order to prevail in a lawsuit. 

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Landmark Case Series: Remembering Baston v. Kentucky

Written by Vanessa C. Deniston, Dolan Law Firm’s 2022 Diversity, Equity and Inclusion Committee Chair

In celebration of Black History Month, the Dolan Law Firm Diversity, Equity, and Inclusion Committee remembers Baston v. Kentucky.
 
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