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It’s Uphill Pedaling for Bike Lawyer

Attorney for injured cyclists says public bias against riders makes court battles a challenge. He believes the reckless ones are a minority.

March 15, 2003 | Steve Chawkins | Times Staff Writer

Bicycle Lawyer Article

When Gary Brustin speeds down a hill on his road bike, he senses the wind on his face, the sweat on his brow and the bittersweet possibility of more clients at every turn.

Brustin is one of the few attorneys in the United States who devotes his practice to the claims of injured bicyclists. As a victim himself, he knows their vulnerability firsthand.

“My clients aren’t encased in 3,000-pound steel cages with air bags and seat belts,” he said. “They’re virtually naked.”

Here, a driver making a left turn plows into a cyclist going straight; there, a fuming motorist edges past a line of bikers on a narrow road, steps out of his car, plants himself in their path, and topples a bunch of the cyclists in a heap of blood and Spandex.

Racing from his main office in L.A. to another in San Jose, Brustin, 53, has seen it all: a virtual Tour de Torts.

“We’re ghosts out there,” said the lawyer, who in his four decades of cycling has had two smash-ups with vehicles. “They’re staring right through us.”

Brustin makes frequent appearances before bike clubs. He advertises in bike magazines and is active in bike groups. He narrowed his practice 12 years ago, calling it “a quality-of-life decision” to focus on an activity he happens to love in his off hours.

But, like other advocates, he concedes not all cyclists travel the straight and narrow.

There are those who weave recklessly between lanes, whip through stop signs, pedal blithely on the wrong side of the road, fail to use hand signals, and ride at night without lights or even a reflector.

They are a minority of cyclists, Brustin said, but they’re memorable enough to turn jurors sour before the first word of testimony. “We head into the courthouse with a big strike against us. Most people don’t really like bicycle riders,” he said. “They think to some extent that we’re renegades.”

Wendy Van Horn doesn’t exactly fit the image of a Hells Angel on a titanium frame.

The director of education at the Ventura County Museum of History and Art, she was biking through a quiet Ventura intersection last spring when a pickup sped through a stop sign and slammed into her.

The impact shattered her pelvis, broke some ribs and kept her off her feet for three months. But her recuperation was made even more painful by the lack of legal action against the driver.

“He got to walk away without a citation,” she said. “If I had been in a car that was totally smashed up, I think my case would have received more attention.”

Eventually the driver was cited — but only after Van Horn sought Brustin’s aid, and a private investigator solicited statements from witnesses. Because the driver was uninsured, Van Horn chose not to sue — but if she had, she might not have been as successful as an injured motorist.

“Bicyclists get the short end of the stick from insurance companies,” said Richard Forcier, a bike attorney in Tucson. He cited a study showing that settlements for injuries suffered in cars were 30% to 40% higher than for the same types of injuries on bikes.

Not so, said a spokesman for a trade group called the Insurance Information Network of California. “Claims are claims, and injuries are injuries,” said Pete Moraga. “There’s no differentiation, whether it’s in a crash with a bicycle, an automobile or a unicycle.”

Still, the lot of a cyclist is not a happy one either in courthouses or statehouses, contends John Forester, an avid cyclist and engineer who testifies as an expert witness in bike cases.

Government views cyclists as children — and particularly slow children at that, he said in the clipped tones of his native England. Although bike lanes are touted by politicians, he said that they do nothing to make the roads safer and that they lull the cyclists who use them into a false sense of security.

“They think you don’t have to learn to ride properly and safely if there’s a bike lane to protect you,” Forester said. “That’s wrong! That’s deadly!”

Bicycles should be seen as a part of traffic and not some annoying added feature, he said.

But ever since the golden age of cycling peaked in the late 1890s, bicyclists have become a tedious footnote to highway planners and the driving public, he said.

“Bicycling has been for telegraph messengers, for poor people, for people out to have fun,” Forester said ruefully. “It was done by children and people who didn’t count. If you were an adult who bicycled, it meant you couldn’t afford a car.”

For Brustin and his handful of counterparts across the country, asserting the rights of cyclists is a matter of science as well as art.

Just as criminal lawyers soon become familiar with the tales told by bloodstains, bike lawyers see a narrative in chipped paint and stressed metal, bent wheels and torn brake pads.

Examining the remains of a bike wreck, they try to counter motorists’ typical claims that a cyclist was speeding or squeezed the brake levers too hard or swerved into traffic.

“We know at what speed an aluminum bike will break,” Brustin said.

Some cases are decided without complex calculation. There was the dog that bounded out of a San Fernando Valley yard and into the rear wheel of a passing cyclist, toppling the rider and breaking her shoulder.

When the dog’s owner refused to produce photos of his pet in court and offered instead to run a doggie lineup, Brustin said, the judge burst into laughter and denied the motion.

“We got that one settled in 10 minutes,” Brustin said.

Then there was the case of the Orange County driver who clipped a bicyclist in traffic. In court, he was so angry that he cursed out cyclists as a class, not realizing that the judge wore a bicycle tie clip and was an avid long-distance biker.

“They deserve what they get,” the defendant sputtered of cyclists’ broken bones.

“His lawyer turned white,” Brustin said. “The judge just sat there, stunned. I was beaming.”

Southern California