Monday, April 9, 2012

Do Cities Need Bike Lawyers?

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For some time now I have seen references to "bike lawyers" on various cycling websites, and wondered whether this was a genuinely useful service or a gimmick. Do bicyclists really need a special brand of lawyers, or are lawyers just trying to capitalize on the momentum of the bicycle culture? 

My skepticism softened a couple of years ago, as I got my first glimpse into how powerful this profession can potentially be in the world of bicycle advocacy. I was living in Vienna at the time and was introduced by several friends to the local bike lawyer - Johannes Pepelnik. Well known for his annual bicycle-themed street parties, for representing cyclists pro bono, and for publishing several books on bicyclists' rights under Austrian law, he is a well-liked and respected figure in the Viennese cycling community. More importantly, he is credited with helping change the balance of power of the city's cyclist-driver relationship in the bicyclist's favour. That struck me as pretty significant.

More recently I became acquainted with Josh Zisson of Bike Safe Boston - Boston's own bike lawyer and creator of the Bicyclist's Accident Report cards - and we've since spoken a lot about the role this profession can play in American cities. Obviously, bicycle law specialists provide paid services and profit off of them; that is how they earn their living. But they can also benefit cyclists in a number of ways with no cost involved. 

In the US, bicycle law is an informal specialty within what's known as personal injury law. And typically personal injury lawyers get paid only if and when their clients receive a financial settlement from the party at fault. This means that consultations with bicycle lawyers tend to be free of charge and cyclists can approach them for legal advice at no cost. 

But in a more general sense, when bicycle law specialists establish themselves in a city, their advertising campaigns often go hand-in-hand with promoting cyclists' rights and educating the public about those rights - either on their websites, via community outreach, or on various on-line forums. And in a sense, spreading this information in a way that is comprehensive to a layperson, is a public service: Thanks to bike lawyers' promotional materials, cyclists can easily look up answers to questions about bicycle law in their home state; they can be better informed.

Finally, I would argue that the prominent existence of a bike lawyer in a community can act as a deterrent for motorists - simply by making them aware that there is someone around who is eager to go to battle against them on the side of the cyclist. Once in a while there are articles published that ask why so few drivers who injure and kill cyclists get convicted. The answers vary, but the bottom line is that there are no real incentives for motorists not to hit cyclists if they know the legal system favours them no matter what. By aggressively advertising their services, bicycle lawyers actually have the power to change that perception. 

All of these are reasons why I am in favour of community-minded bicycle law specialists, and believe that the more they promote their services, the better it is for everyone. Maybe some day, fear of litigation will make cautious, courteous motorist behaviour common practice.

33 comments:

  1. o_O Well, now, this is an interesting coincidence. Today is the day I visit my lawyer (who is definitely a bike lawyer) to pick up my settlement check from a crash I had a year and a half ago. (I hit an unmarked and vicious speedbump on a hotel's driveway, went over my handlebars, and was in the hospital for five days with stitches in my face and a lacerated liver.)

    There is, of course, more than one bike lawyer in Portland. I hired the one I did because Shawn knew him and a friend of mine hired him after she was hit by a driver. He's also defended friends of mine with tickets for silly things--like the friend who was ticketed for having too many people on his bike because his date was sitting on his rear rack.

    So, yeah: If you get in a crash/get a ticket on your bicycle, I definitely recommend Mark Ginsberg!

    (Side note: he worked at Harris Cyclery while he was an undergrad. He was good friends with Sheldon Brown!)

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  2. I saw that article on Transpo nation and the quotes from the DA about "society's choices" made my blood boil. I started to post about it, and decided to calm down a bit.....

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    1. Yes several things in that article made my blood boil; I better not even start!

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    2. Some of the assumptions in that piece were deeply disturbing. I think you should post about it, V.

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  3. We have exactly the same dilemma here in Australia: that motorists who hit cyclists, or car door them, are rarely prosecuted. I read one account of a recent car dooring where the reason given for not prosecuting the motorist who doored a cyclist was that she was upset (I am sure the cyclist was upset too, as well as very sore, off work for a time etc). The fact that laws protecting we cyclists are not enforced means that we have virtually no rights on the roads and motorists will not care until the existing laws are enforced.
    One of the reasons cited for the success of cycling as transport in the Netherlands is the reversal of the onus of proof so that car drivers have to prove that they were not negligent when involved in an accident with a cyclist. Until we have a system approaching that, there will be no strong cycling culture here. We need a legal reform, both in terms of the nature of the road laws and the enforcement of them.
    Vicki

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    1. In Austria the law is similar to the Netherlands; drivers there are too scared of legal ramifications to "door" cyclists. As much as I want to believe in people's inherent goodness, I think historically we have plenty of proof that fear of legal consequences is a better deterrent.

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    2. David Hembrow who usually knows what he's talking about is very skeptical about American's dreams of what "strict liability laws" will do for cycling: Blog post So while strict liability certainly doesn't hurt it certainly isn't a sufficient condition for creating the Dutch cycling paradise.

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    3. It is an interesting post (I'd read it earlier), but I am not sure how convinced I am by the argument he makes. I am not suggesting that strict liability is the only factor in improving conditions for cyclists; but I do think it needs to be there as a matter of course.

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    4. I think Hembrow's right that strict liability isn't sufficient by itself to make large change. But exactly as the "society's choices" article points out, the legal statues are where we express our understanding of acceptable conduct.

      "We" currently accept that if someone gets hit by a car and hurt, it is largely considered an unavoidable act of god not deserving of punishment. Strict liability laws won't just appear on the books magically. It will require shifting people's understanding and view of how we handle accidents. The law in and of itself won't change attitudes, but the battle for these laws will affect them.

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    5. I had read Hembrow's post before too and I agree it is more than a change in the strict liability aspect that needs to change, but here we have a situation where prosecutions are not made against offenders who are in cars and who injure cyclists, while cyclists are targeted for minor offences such as not wearing helmets. It is hard to believe that there is not discrimination happening in the application of the law. The reporting of the presence or otherwise of a helmet in cycling accidents in the US where helmets are not mandatory shows that it is not just the law regarding helmet use which comes into play here, it is a deeper attitude towards cyclists both by the enforcement officers and the community. (And I am not trying to turn this into a helmet debate, just delete this, V if you need to)
      Vicki

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    6. Not wearing a helmet is not in any way an offense in cities where they are not mandatory, which includes NYC where the incident in the linked article took place. The fact that the police report itself (and not just the media this time) conflated running a red light with lack of a helmet is profoundly disturbing.

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  4. Yep, cities need bike lawyers! Also immigration layers, copyright lawyers, art lawyers, maritime layers, fraud lawyers......etc....It's a legitimate specialization and we need advocates who understand the relevant issues...I'm thinking the other side will have their lawyers, why not us? Doubt that it's particularly high paying, but perhaps will be filled with the passionate, idealistic types:)

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  5. Thank you for addressing this subject. That NYC article could have been written for Florida and many other cities in the US. It's very disturbing how so many bike deaths DO NOT lead to conviction and in some cases the drivers in question are not even charged. Cyclists and bicycle lawyers Could make a difference. Advocacy groups alone are not enough.

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  6. Mostly, few other lawyers know anything about how the law applies to bicycles - and especially the prosecutors and judges. I'd hire one to protect my rights if necessary.

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    1. I was surprised to discover that as well. I have a couple of friends who are lawyers in what I would have thought are related fields and they had some serious misconceptions about what cyclists are allowed/not allowed to do in traffic.

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  7. I like it how you made the bike lawyer look like a superhero :>) Maybe he ought to wear a Bike Safe Boston cape in reflective orange!

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    1. Came out pretty cool but that was entirely unintentional. Sometimes outtakes are the best.

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  8. The law, like medicine, has become specialized and so it makes sense that such a species of lawyer would exist. Divorce, taxes, real estate, personal injury, etc. There are so many damned lawyers milling about these days I suppose its inevitable they each try to differentiate and be special. Bike injury specialized lawyers have been around for awhile. Now that they all advertise I think preaching on cyclist's rights and safety is one way to make a mark and endear themselves with a possible future clientele. Its good advertising but who knows about skills, responsiveness and track record, etc. when the chips are down.

    Interesting point that bike-injury lawyer advertising might help create an awareness and/or fear of cyclists.

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  9. My husband was hit by a truck while biking down a hill. He had the right of way, and thought for sure the driver of the truck saw him, but just as he passed the truck, the truck pulled out! My husband got David Hay, a cyclist lawyer who has written for momentum for many years to be his lawyer. The sad truth about cycling and the law is that bicycles are considered vehicles under the motor vehicle act in most areas. This mean we are forced to compete with cars/trucks etc and it is black and white. There is no consideration for the fact that you are riding a tiny metal contraption with no protection against big metal death machines. Often fatalities or major injuries of cyclists are still considered their fault for merely being on the road it seems! If you fail to wear a helmet, or follow the rules of the road to the letter and are in an accident, you are in trouble. Sometimes the cyclist is in legal trouble because they either took a short cut or did not follow the rules of the road to the letter because it was unsafe to do so. If for example you come across an intersection with a right turning lane and you are going straight, you must keep on going in the straight on driving lane. You cannot ride the shoulder and go back to the straight lane, or ride the turning lane until you come to the intersection. As a cyclist it makes sense to try stay out of the way, but if you get into an accident in the wrong lane, you are hooped.
    I have heard that in Germany and other European countries cyclists and pedestrians have priority over vehicles and heaven forbid you ever hit a cyclist or pedestrian.
    As for my husband, he was found partly at fault which is ridiculous and shows a definite car bias. Had my husband been driving a car and was hit by the truck, the truck would most definitely been found at fault.
    So, be careful!

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    1. If you don't mind my asking, in what way was your husband found partly at fault?

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    2. Thank you for this thoughtful post.

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    3. Very sorry to hear about your husband's situation. I agree that cyclists are at an inherent disadvantage in the US, because a bias exists against them. Something to be aware of for sure.

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    4. I am wondering if Heather is talking about the legal construct called 'contributory neglegence' where, for instance, a cyclist is run over from behind but because they didn't have a mirror or a helmet they may be found to have 'contributed' to the accident.

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  10. Hmm...I am usually quite reluctant to advocate for a higher concentration of lawyers in any industry (and I am one!) but the bike lawyer thing seems valid, especially since most personal injury lawyers do not appear to specialize in this.

    I suppose the argument (from the legal industry's standpoint) is that, since personal injury cases are almost always taken on a contingency basis, the chances of a bigger settlement involving a bicyclist are lower, since, presumably, the collisions will occur at lower speeds and the injuries sustained are not always as severe as those occuring when two automobiles are involved. Obviously this is not always the case with cyclist-auto collisions, but I was just theorizing.

    For example, here in Minneapolis, we have four law schools, a glut of lawyers, a bicycle-loving infrastructure and yet very few lawyers are advertising themselves as bicycle advocates.

    What is up with that?!

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    1. "For example, here in Minneapolis, we have four law schools, a glut of lawyers, a bicycle-loving infrastructure and yet very few lawyers are advertising themselves as bicycle advocates."

      Maybe it is because most bike riders are not insured so big insurance companies are not involved and there is less money attached to it, just theorising too ....

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  11. In many (purportedly) civilized (look, American spelling) countries, "I didn't see him" is an ultimate defense to killing or maiming a cyclist, because it usually means the motorist walks.

    That is why legal supermen as Bob Mionske are in such demand. We owe it to the dead or injured to seek justice, which is otherwise seldom delivered in cyclist/motorist incidents.

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  12. "I didn't see him" is an ultimate defense to killing or maiming a cyclist,"

    Which is why I wear a highlighter yellow windbreaker and a white helmet when I know I'm going to be on busy roads or at night...

    If they claim they couldn't see me, they must be Mr. Magoo.

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    1. The point is that is doesn't seem to matter if they actually saw the cyclist or not, as long as they say they didn't.

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    2. Convincing the victim that whatever act of aggression committed toward him is his own fault is a classic tactic of a powerful perpetrator. When this is successful the victim scrambles in vain to do everything just right. Maybe then the abuse will stop. A helmet? Not just any helmet but a white helmet? Wear yellow 24/7? Yes sir Mr. Driver, look how good I am, won't you spare my life now? But guess what it's never going to be enough. It does not work that way. Demand human rights for cyclists, that is the only solution.

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    3. If you think about it, "I didn't see him" is more often than not an admission that the driver was not looking: texting, digging in their bag, looking at directions, turned around to talk to their kids in the back seat. It should be treated as such.

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    4. When I was learning to drive, I was taught that it was my responsibility to be aware of my surroundings, keeping my eyes on the road and checking my rear view and side mirrors, and to drive as if I were invisible. That is why I am perplexed by the "I didn't see him" defense. I pretty much ride my bicycle using the same principles that I was taught about driving. And I do, strive to be visible with lighting, even during the day, making eye contact and wearing bright jackets and coats when I can. I can sympathize with the "I didn't see him" defense when the cyclist is on the road at night without any lighting whatsoever and dark clothing. I do see this behavior pretty regularly and much of it comes from college student early in the academic year.

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  13. I don't think bike lawyers are necessary, but I do think mindful and alert bikers are necessary. Every cyclist has the responsibility of being alert and aware on the road, just like every driver of any motor vehicle.

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  14. I have been a bike lawyer in Vancouver 20 years- prior to that, I took instructions from insurance companies until a colleague at an examination for discovery challenged that choice of work, advising me I was "too nice a guy". My view is that there remains a systemic bias against cyclists in societies where cycling as a form of commuting is relatively new. I see this routinely in the results of forensic investigations and accident reconstructions. I wish I were unnecessary, but someone needs to empower the individual against the monolitic car based insurance world we all face, particularly in cases involving serious loss. Be safe everyone and expect the unexpected.- David Hay

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