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Naomi  The Biking Life

 by: Naomi Bloom  5/1/2008

Bona Fide Legal Counsel

Everybody has a favorite lawyer joke. But no one laughs when cyclists find themselves in need of a good lawyer. When you or someone you know gets hit by a car, who you gonna call? Especially when you know you're in the right and that *&O$# driver was totally wrong.

In California, Gary Brustin gets a lot of those calls. With offices in both Santa Monica and San Jose, Gary covers the entire state as "The Bicycle Lawyer."

An avid cyclist for over 45 years, Gary earned his law degree at Hastings in 1975. After 15 years of personal injury work, he decided to devote his practice exclusively to bicycle injury cases. And he doesn't just talk the talk in court. He also walks (or maybe I should say, pedals) the walk in his pro bono work by representing our legal interests on the boards of directors of the California Bicycle Coalition, the League of American Bicyclists (LAB), the Sacramento Area Bicycle Advocates Advisory Committee (SABA), the Silicon Valley Bicycle Coalition (SVBC).

Gary I met Gary in person last month, when he gave a presentation at a local bike club meeting. My first impression was that he looks younger than his photograph. And he's a snazzy dresser; for an informal club meeting, he was decked out in suit and tie as if he were appearing in court.

For starters, Gary gave us some examples of accidents from previous cases. Naturally, he related most of the outlandish ones; "I can't make this stuff up," he insisted.

Common scenario #1: Car turning left in the opposite lane. In one case, a "Little Old Lady from Pasadena" turned left in front of some cyclists. "I knew the cyclists would be in the bike lane and going fast," she testified. "But they were only cyclists."

Then there's the right-turn "slow-speed accident." The law says a motor vehicle must turn into a bike lane to make a right turn. But, claimed Gary, motorists think the dotted line is so cyclists can leave the bike lane. (I disagree: In my experience, motorists have no idea what the dotted line is for.)

Gary's advice: Look for the wheel angle of the car to anticipate where it will turn. And double-check for left turners coming toward you.

Getting "doored" has brought more than one injured cyclist to Gary. In a Berkeley case, a kid heading home from school had his right hand shattered. The defense lawyer argued that the boy was going too fast, that he should have been on a side street, not a main artery, and he should have looked into the cars and into the side-view mirrors!

Believe-it-or-not department: In a San Diego case, a cyclist was doored by a passenger at an ATM. The passenger jumped out of the car to make a "quick" transaction. Yes, you can get doored on the right side of a car. In Palos Verdes, a car passed close to a rider, who gave the driver the "one-finger salute." The car came back around and the passenger flung open the door.

There are two types of accidents Gary does not know how to avoid. One was a case where an SUV-plus-trailer sideswiped the cyclist. It must have been pretty bad because it's put Gary solidly in support of "Measure of Safety" legislation that gives cyclists three feet of clearance.

Worst-case scenario: a high-speed rear-end accident. It's almost always fatal. And he doesn't know how to avoid it.

He proceeded to list seven common motorist excuses that don't hold legal water:

  • "I didn't see you."
  • "I didn't hear you."
  • "I didn't realize you were going so fast."
  • "You were going too fast!"
  • "There's no bike lane here. You have to ride a bike lane or bike path."
  • "Why aren't you walking your bike?" (in a crosswalk at an intersection).
  • "Aren't you supposed to stop for me?" (when making a left turn)

Regarding the crosswalk, Gary informed us that "there is no law against riding a bike in a crosswalk." Likewise, "here is no law that says you must put your foot down to stop."

What to do when you get hit

Tips for dealing with an accident:
  • Always carry emergency information. Gary offers free laminated business cards with a place for emergency information on the back.
  • Get care at the scene.
  • Cooperate with police. If you're too hurt, you don't have to talk to them.
  • Try to get witness information.
  • Use your cell phone to take photos. The police only take photos in about 3% of cases.
  • See a doctor.
  • Call a lawyer earlier rather than later.

When Gary takes a case, his investigators are thorough. "Our engineers know at what speed a carbon fork breaks or an aluminum frame snaps," he told us. Another tip: "Don't wash your clothes; they could be important evidence."

Why is all this necessary? "We are not favored plaintiffs in court," he reminded us. "The CHP is not our friend. Sometimes their reports can be astonishing."

Insurance hassles

If the driver that hits you has no insurance, your homeowners insurance will cover your bike. And your auto policy's uninsured motorist coverage will help with expenses.

That's what happened to former Palo Alto mayor and perpetual cycling advocate Ellen Fletcher back in 1993. "I was hit by a car in Sunnyvale," she told me. "Of course I called Gary. The driver lost his insurance coverage while my case was pending. So I was covered under my car insurance company." But not without some hassles. The insurance company insisted on specifying the doctor to examine her. Gary and Ellen "Gary wanted to be present for the examination, but that doctor refused his request. So Gary told [the insurer] that I would not be examined unless he were present! So they referred us to another doctor who didn't object to Gary's presence.

"I learned that my car insurance covered me even though I was riding a bike. I've vowed ever since my accident to keep my car insurance once my old car dies (I don't intend to replace it) just so I'll be covered in case I'm again hit by an uninsured driver."

Gary spends two days a week in the Bay Area working on local cases. If you occasionally ride the Paradise Loop in Marin County, you may have seen him on a solo ride. Down south, you could encounter him climbing Pauima Road in the Santa Monica Mountains.

"I love hills, love to climb." I make sure to ride every day, inside or out, for at least one hour. For me, riding is like eating a meal. I skip it and I miss it tremendously."

Oddly enough, the "Bicycle Attorney" and advocacy champion doesn't commute to work. "There is no safe route to my office," he confesses. "There are no showers there." But he does profess to run errands frequently by bike.

The case for advocacy

Gary believes cycling is a vital part of the solution to our nation's public health and transportation problems. He views bicycle advocacy as a catalyst that awakens the motoring public to the possibilities for bicycling to solve some of our country's most complex issues. His major concerns center around:
  • Problems with actual rights to the road
  • Banning bikes in business districts
  • Serious injuries on bike paths because litigation is prohibited in California.

He believes the three most important pieces of legislation currently pending are:

    • The three-foot pass rule. Some 18 states already have it but it was defeated in California last year. Political interests (specifically the Teamsters and insurance companies) were against it. Since so many motorists seem to be uneducated, distracted or inattentive, Gary believes that if we "give them a rule or law, they will know how to pass a bicyclist."
    • Safe Routes to School
    • Complete Streets on the national and state level: Every time a roadway design or redesign happens, they must take all users into account -- pedestrians, cyclists, people in wheelchairs, on scooters -- sending a message that alerts motorists that all users have rights.

      What can you do to make a case for cyclist rights? "Be a good-will ambassador for cycling," says Gary. For instance, "At a stop sign, stop and wave [the motorist] through. And watch the reaction."

      What better kind of guy to have in your legal corner? As Jim Langley puts it, "Here's hoping that you never get injured while riding. But, if the worst happens . . . Give Gary a call. He's a great guy, a cyclist, and he knows his stuff (he's probably represented more riders than any other bicycling lawyer)."

      Naomi can be reached at naomibloom@earthlink.net

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