Pre-Litigation, negotiation and (possible) settlement
March 10, 2014
A personal injury claim timeline is different in every case but, involves the same, potential steps. The process in settling your claim in a personal injury action is both confusing and time consuming but, it will run much smoother if you have competent legal counsel to assist you. Typically a personal injury claim is a five step process, with lots of little steps taken within the big five. Below is a quick outline that will describe what your attorney is doing for you during this time.
Every case starts relatively the same. A person is injured in an accident, be it a boating accident, vehicle accident, slip and fall or any hundreds of different ways that people can get hurt from the negligence of someone else. The attorney will first make sure that the person injured is being seen by a doctor. This serves two purposes for the attorney as follows: (1) It will let us know what type of injuries for which we are seeking recovery and; (2) it will allow us to start the documentation process of cataloguing your injuries. During this process, the attorney will contact the third party who caused the injury and open up a claim. The attorney will be in contact with an adjuster who is administering the claim. This contact will be to let the adjuster know the extent of the client’s injuries, the estimated time for recovery, and if there will be any anticipated future medical care needed for that person.
The client’s sole responsibility during this time is to get better. This includes making all doctor appointments, attending all physical therapy sessions and communicating with the doctors and lawyers about the progress of their treatment, and if the pain is getting better or not. Once the client has treated for a bit of time, usually two to four months, the doctor will be able to determine if the client has healed or if more aggressive treatment is necessary. The doctor will then, through reports, inform the attorney of the health of the client.
At this time, if the client is better the attorney will send out what is called a “demand letter”. This letter is a demand for settlement of the claim. The attorney will give the insurance claims adjuster the full medical records and bills, which document the injuries and treatment from the accident. Typically the attorney will give the adjuster 30 days to go over the reports and respond to the demand.
The response can vary wildly but, the end result sought is the same. The attorney is trying to settle the claim for the most money available. The adjuster is trying to settle for the least amount possible. Sometimes the claim will settle and sometimes it will not. When the claim settles, the attorney will then settle all the medical bills and will disperse the settlement funds to the client. When the claim does not settle, the next stage in your case is filing the complaint.
Filing the Complaint, Serving the Third Party and the Beginning of the “Litigation” Process
When a claim does not settle “pre-litigation”, the attorney will then file a complaint with the court where the accident occurred. The complaint is a document whereby a person will list the basic facts of what happened, how the third party caused the accident, and the resulting damages that this accident created. It is the initiation of a person’s court claim (i.e. a “lawsuit”) against the person who hurt you. Many clients believe that by opening a claim that they are “suing” the person who hurt them. It is not until a lawsuit is filed that a person has been sued. This is the beginning stage of the formal legal proceedings. The person claiming injury and damages is now known as the “plaintiff”.
After the lawsuit has been filed, the attorney will then “serve” the party (ies) who caused the accident (now known as “defendant(s)”). This is done by a process server who will physically hand deliver the complaint to the third party, or one of their representatives.
After the defendant(s) has been served, they have a short amount of time (usually 30 days) to file a response with the court. This response can be an “Answer” whereby the party will answer to the allegations given in the complaint, or a response stating that the complaint is lacking in some shape or form (motions known as “demurrers”, “Motions to Strike” and others).
The “discovery” process in litigation is where both parties attempt to gain information about the facts and circumstances of the accident. This process usually starts with written questionnaires that are referred to as “interrogatories”. In California these interrogatories have been set up as a form that both parties use called “form interrogatories”. They are a group of questions with sub parts that have been designed by the Judicial Council of California as a quick and expedient way to get the main issues and facts of the accident answered. Sample form interrogatories ask the name, age and residence of the answering party, they ask for the injuries sustained, insurance information and how the accident occurred.
Subsequent interrogatories are referred to as “specially prepared interrogatories” or “special interrogatories”. Because each case is different, many parties will ask further questions that are not covered by the form interrogatories. Typically these questions are more pointed and will seek out specific information.
Other forms of written discovery include “Requests for Production of Documents and Things” These are requests for production of any writings, recordings, pictures, videos, etc. that relate to your case. Each question will seek specific forms of documents and things, and if the party is in possession of the item requested and does not have a valid legal objection for producing it, the documents/items will have to be turned over.
Other items of written discovery include “Requests for Admissions” where one side will ask direct questions about the accident and ask the other party to either admit, or deny the fact asked. In addition, a “Request for Statement of Damages” asks for a breakdown of the damages being claimed like medical expenses, lost wages, and pain and suffering.
After the written demands for information have been answered, the parties will then proceed to the next stage of litigation and will start the deposition process. A deposition is an oral question and answer period. The attorney (either plaintiff, or defense) will call the opposing party to a setting where the party called will answer questions relating to the accident. This setting is typically a day long affair, with the party and their attorney on one side of a table answering the questions of the opposing attorney. The session is covered by a court reporter who will take every word down and put it into a booklet form. The deposition is taken under the penalty of perjury and is geared to seek the truth, in the parties own words about the accident.
This beginning litigation process can be as fast as two or three months, or as long as a year. During this time, the attorneys are determining the facts related to the accident, the extent of injuries of the plaintiff and the resulting fault of the defendant(s).
The client’s responsibilities at this time are still similar to the responsibilities during the pre-litigation process. Their attorney wants the client to continue treatment and to ultimately regain their health. The attorneys also need the clients to cooperate, however, in responding to the questionnaires and being present and prepared for their deposition.
3) Mediation and early settlement
Usually after discovery has been completed up through the deposition phase, a mediation will be scheduled. Mediation is a process where both parties will go to an independent third party to help settle the claim. Typically, when parties have gotten to this stage, it is because of a fundamental difference in opinion of the value of the case. This difference of opinion can be based on any number of things, but will usually boil down to a handful of differences as follows:
Liability: The defendant(s) may believe that they were not in fact at fault and that the plaintiff or other parties are partially or wholly responsible for the incident.
Damages: Many times the defendant(s) will not believe that the person was injured at all or as bad as they are representing.
Case Value: As mentioned in the pre-litigation category, the plaintiff’s attorney is trying to get the biggest amount of money possible for their client, whereas the attorney for the defendant is trying to pay as little as possible. When this happens, the parties on their own have a difficult time coming to an agreement. This is where getting a mediator to help move both parties to agreement will come in to play.
The mediator is an Independent Third Party who is there for the sole purpose of trying to help the two sides come to an agreement. Their work will include showing the strengths and weaknesses of both parties’ claims and defenses and to show the facts to both sides in an unbiased and independent manner.
A typical mediation involves all parties and their representatives in a neutral location (usually the mediator’s office). The mediator will separate the parties into separate rooms and will talk to each party individually. Mediation will typically start with the mediator talking to each side to determine the basic facts and claims of the case. The mediator will determine the extent of the injuries and potential future care needed, will determine the facts of the accident, including liability of each party, and will simply meet and briefly get to know the parties involved.
After the initial meeting the mediator will then seek demands and counter demands from both parties. Usually the demand and response will start extremely far apart. For instance, a plaintiff may demand $100,000 on a case that has an actual value of $40,000. The defense will then counter with something along the lines of $2000.00. After these opening shots, the mediator will work with both parties seeking to move them to the middle ground of the actual value of the case.
Sometimes this actual value will be achieved. In this case the mediator will settle the case and the case will be over. Other times, because of facts that are still in dispute or an inability to find a middle ground, the mediation will not result in a settlement. When this occurs, the next stage is preparing for trial.
Pre-Trial and Renewed Settlement Efforts
The time spent after the mediation is setting the stage to present your evidence in a trial setting. This includes organizing all documentation and information collected during discovery and retaining experts and getting witnesses ready to testify. The purpose of an expert is to inform the jury of an opinion particular to your specific case. Experts will cover many different aspects of your particular situation. They will include your medical providers. Who better is situated to explain an injury than the doctor who helped you regain your health, or performed the actual surgery needed to put your body back together? Other experts will detail how the accident caused your particular injury, and yet other experts will detail how the accident occurred and how liability is to be established.
The experts will do this through many different avenues of fact gathering and opinion formation. Some experts are the primary treating physicians. Other experts may include an accident reconstruction expert to better explain how the incident occurred or a biomechanical expert to show the “mechanism of injury” (i.e. to show how the injury you are claiming was caused by the incident). These experts may perform tests and will investigate the accident to determine exactly what occurred and how that created the situation that is being litigated.
This is when the “second round” of discovery usually begins. The experts that have been designated as witnesses and people designated as lay witnesses (people who are not experts, but have facts relevant to the case) will be deposed. Second rounds of written discovery will be sent out. Anything that can supplement the original answers provided will be turned over. And the preparation for the actual trial will begin.
At this time your attorney is also preparing for the evidence that will be presented at trial. Both sides will determine with the help of the court the evidence that is allowable, the evidence that is too prejudicial to be fair, and the evidence that is not relevant to show to the potential jury.
During this time both sides will also be working to see if the steps made at mediation can be continued. What many people do not understand is that all during this process, both sides are always actively working to resolve the case. Many times a case will not resolve simply because more information is needed by both sides to make an accurate determination of the fair value of the case at hand. So even though both parties are working extremely hard to prepare for trial, and to prepare to prove their case, they are always open to resolving the matter as long as the matter is resolved fairly.
As the trial date approaches the attorneys for both sides will begin to feverishly work to be prepared for the day when the jury is picked, and they can present their clients story.
The trial is a Constitutional right for an aggrieved party to be heard by a jury of their peers. In a civil trial the party has to show by a preponderance of the evidence that their injuries were caused by the defendant, and that the defendant has to pay a monetary sum to compensate for the injuries they caused.
The jury trial starts with the selection of the jury. Everyone is aware of jury duty. When the people assigned for that time appear for their duty, they are taken to the court in a large number. The attorneys will then ask questions of potential jurors to determine if in their experience they would be a fair “peer” to listen to the evidence presented and make a determination to settle the dispute. The jury will usually consist of 12 members selected with a small number of alternates. The jury will listen to all the evidence presented and after that will deliberate by themselves with no outside influences the nature of that evidence and make a determination of guilt or innocence and the amount of damages.
The evidence is presented by the witnesses. These will include, typically the injured party, any person who saw or has knowledge of the accident, and the experts discussed earlier.
The attorneys will present the evidence by asking the witnesses questions related to the information that the witness has knowledge of. The witness will also be asked questions by the opposing side to better clarify the witnesses knowledge, or to show that the particular witness has bias, or incomplete memories. The act of cross-examination is used to make sure that each witness provides only the truth, and that the testimony they give is accurate. They jury will use these examinations in their deliberations at the end of the presentation of evidence.
At the end of the trial, after the jury has deliberated, they will return and will, through the presiding judge inform the parties of their determination. The jury will return a verdict of either guilt of the third party or a verdict of no liability. If the third party is guilty the jury will also return with a dollar amount that they have determined will make the plaintiff whole. This can include the actual medical bills required to help the person, and will include any damages for the pain and suffering the plaintiff went through because of the accident.
The Importance of Hiring a Quality Legal Representative to Assist You in Any Accident or Injury Claim:
When a person is injured through the fault of a third party, the process to be made whole can be long and arduous. Though this is a typical process of a claim, every claim is different. Many claims will settle at any point during this timeline. Some claims will settle at the courthouse steps and some claims will settle prior to the filing of the original complaint. In some instances the claim will never settle and will have to go the full distance to a jury verdict for justice to be served. The purpose of an experienced attorney during this time is to help the person navigate the waters and reach that fair settlement. Though the process can last for many years, the ultimate goal of your attorney is to put you as close to the position you were in before the accident occurred. Though an attorney cannot take away the pain you suffered, nor repair the damage done to your body, we can give you the compensation that the law in this country provides. This is a monetary award that will try to compensate you for your past pain, and make sure you have resources to care for any future medical issues you may have as well as to compensate for future pain and emotional distress.