Most every personal injury case is unique. For example, each case involves different people or companies. The facts and circumstances of the events causing the injuries differ. The injuries differ, as do the treating doctors and the treatment plan for such injuries.
In addition, different insurance companies and appointed attorneys are involved, each with their own independent style. Some insurance companies and their appointed counsel take a hardline approach, forcing the majority of cases to be filed with the court and only entertain settlement discussions when trial is approaching. Others seek to settle claims early on so as to avoid excessive legal fees and costs.
Despite the fact that there are many nuances to each claim for personal injuries, there are some typical paths that most claims follow. This article is intended to provide a general roadmap of a typical personal injury claim filed in California
• Injury Occurs: Medical Treatment: First and foremost, make sure you get the appropriate medical treatment right away. Your health is more important than your lawsuit or claim.
• Who’s at Fault?: After the injury occurs, the injured party typically has a sense of whether or not the events giving rise to the injury were the fault of someone else. Most prospective clients have a good sense of “Do I have a case?” prior to contacting a lawyer. However, if you have questions about fault or liability, it is best to contact a lawyer so that you understand your rights completely.
• Contact a Lawyer: Learn your rights. The attorney will tell you whether you have a case and what to expect. Retaining a lawyer early on will also enable the attorney to write letters to preserve evidence (i.e. a defective product, a damaged car, a video of the scene).
• Does the Person Responsible for the Injuries have Insurance or Money?: The lawyer should immediately take the steps necessary to determine if the responsible party has any money or insurance to pay the injured party. If there is no money, there is rarely reason to pursue the matter.
• Permanent vs. Non-Permanent injuries: There is a big difference in how a case is handled depending on the nature of the injuries. A case involving life-long, permanent injuries almost always requires that a lawsuit be filed prior to settlement. Smaller cases are routinely settled through negotiations with the insurance company adjuster prior to a lawsuit being filed to avoid extra fees and costs.
• The Demand Letter: Smaller Cases Involving Non-Permanent Injuries: After the injured party has completed treatment, the attorney will draft a letter to be sent to the insurance adjuster with a settlement demand. The letter is usually quite lengthy. It will normally summarize the events that caused the injuries and also the nature of the medical treatment and the cost thereof. The letter will describe in detail how the injuries affected the client’s life and the pain, suffering, anxiety and physical limitations arising out of the injuries. The attorney will attach medical records, billing records and loss of earning documents to the letter to support the claim. Normally, settlement discussions ensue, and the claim is settled with the client informed every step along the way.
• Larger Cases: Claims involving permanent injuries or have a value at or above $50,000 usually require the filing of a lawsuit in order to ultimately reach a fair settlement of the claim. Please keep in mind, there are many exceptions to the foregoing sentence.
Post Lawsuit Activity:
• Filing Suit: First, the attorney drafts a “complaint” on behalf of the injured party (the “plaintiff”) which sets forth the basic facts surrounding the claim and identifies the person/corporations responsible (the “Defendants”). The complaint is filed with the court and is served on (delivered to) the defendants.
• Defendants Deny Liability: Once the defendant(s) are served, they typically respond by filing an “answer,” in which they deny they are liable for the incident and injuries.
• Witten Discovery: The next thing that normally happens is the attorneys for the plaintiff and defendants (the “parties”) send each other written questions (called interrogatories and document requests) to find out more about the facts of the case, such as to learn the identify of witnesses, to obtain documents, to learn about the injures and medical treatment, and to learn about the extent of insurance coverage.
• Oral Depositions: Shortly after the written discovery is completed, and about six months after the case is filed, the parties normally take oral depositions of people with knowledge of the facts and circumstances of the claim, including the parties. An oral deposition is a face-to-face encounter with the attorneys where questions are asked of witnesses with all questions and answers recorded by a certified court reporter (and sometimes videotaped as well). Depositions normally occur in the office of the attorney that requested the witness appear for his/her deposition.
If you, as my client, are to have your deposition taken, you and I will meet for a number of hours, and sometimes multiple days, so that you are completely familiar with the process, your memory is sharp, and you are prepared to give the most accurate and compelling responses to every question posed by opposing counsel. I will also be present at the deposition to make sure each and every question is appropriate and not-confusing to you.
• Medical Records and Evaluation: The defendant in a personal injury case has the right to have you examined by a doctor of their choosing. Normally, this examination is taken fairly close to the trial date, but prior to entering into settlement discussions for the case. Prior to conducting the examination, defendants typically obtain plaintiff’s medical records (via subpoena) so that defendants can verify the nature of the injuries claimed and to independently assess the significance of such injuries.
• Expert Witnesses: The decision to retain expert witnesses in particular specialties and fields is a function of the facts of the case. Complex cases usually require that many experts are retained. Experts are important to winning. They are allowed to testify to their “opinions” at trial and their opinions can sway the jury. Experts read the deposition transcripts, inspect the scene of the accident, evaluate the design of the detective product, and evaluate the medical records, among many other things. Ultimately, expert witnesses will have their depositions taken by the attorneys for the opposing side. Many cases settle shortly after the expert depositions have been taken because both sides fully understand the respective positons of the parties and the risks associated with going to trial.
• Settlement Discussions and Mediation: Somewhere along the way, settlement discussions will begin either informally (the attorneys will simply discuss settlement over the phone) or formally (arrange for the parties and their attorneys to select and meet with an experienced mediator in an attempt to settle the case). Most cases settle prior to trial.
• Trial: If the case does not settle, then the case proceeds to trial. A jury is picked. Opening statements are made. Witnesses testify in open court under the supervision of the judge. Closing arguments are made, and then the jury deliberates and comes to a decision. Trials take anywhere from four days to three weeks, depending on the complexity of the matter. If the trial is held in the state courts of California, the juries are typically comprised of 12 people. To succeed, 9 of the 12 jurors must support your case and award damages.
Of course, there is much more to the process than I have outlined in this article. The purpose of the article is to paint a general picture of the process intended to inform those not typically involved in legal proceedings. If you need a lawyer or an attorney, don’t delay, make the call now.
William E. Waddell is the principle of the Law Offices of William E. Waddell. He is a graduate of the University of the Pacific, McGeorge School of Law; where he was awarded the “Best Trial Advocate Award.” Mr. Waddell handles personal injury, employment law and other matters.
Email: firstname.lastname@example.org; Telephone.: (310) 318-6398
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