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The purpose of this FAQ is to enlighten you about personal injury law and to
explain how your case will be handled by your attorney. Most of the questions
that you may have about your case are answered in this booklet. Please read this
thoroughly, more than once if necessary. The information will be very important
to you. A thorough understanding of the details of your personal injury case can
help promote a fair, adequate settlement.
If you have further questions after reading this FAQ, write them down or note
them in the booklet itself, and your attorney will discuss them with you in
detail.
You The Client
Your Lawyer
The Insurance Company
The Person, Persons or Company Who Caused Your Injuries
When will my case settle?
Litigation if The Case Does Not Settle
The Trial
After the Trial
You the Client
1. What is the most important thing for me to do after my
injury?
The most important thing for you to do, quite simply, is to recover from your
injury. The law requires injured people to "mitigate their damages." In other
words, the law requires you to do that which is necessary to improve your
physical condition and recover from your injury.
For you this may mean some, or all, of the following steps:
a. Do not miss appointments with your doctor. Stay in touch with your doctor
and be certain to maintain your appointments. If you have to cancel, notify the
doctor with as much notice as possible. The words "no show" on a doctor's record
sheet can be used against you at the time of settlement or trial.
b. Attend physical therapy sessions as prescribed. Your physician or hospital
may prescribe therapy to facilitate recovery from your injury. Such a procedure
is often helpful in many types of injuries including strains, sprains and other
so called "soft tissue" injuries. If physical therapy is prescribed, be sure to
keep your appointments and participate actively in the process. Again, if you
have to cancel an appointment, be sure to call, but try to avoid cancellation as
much as possible.
c. Do what your doctor tells you to do. If your physician prescribes certain
medications, therapy exercises, or limitations on activities, be sure to follow
your doctor's orders. Failure to follow your doctor's advice can be used against
you when it comes time to settle your case, or can be used against you in court
if your claim proceeds to litigation.
d. Follow your doctor's advice with respect to work and leisure activities.
If your physician advises you to rest, stay home from work, or avoid certain
activities, it is important that you follow such advice. If you resist your
doctor's advice and do activities that have been limited, it will not only
prevent a speedy recovery, but could also affect the legal aspects of your case.
Even though staying out of work may have an impact financially, it is important
that you follow such advice so that your recovery will be enhanced. Your
attorney will attempt to recover lost earnings.
2. How do I pay my medical bills?
Your lawyer will discuss the payment of your medical bills in detail with
you. In summary, your medical bills may be paid by one of the following methods:
a. Your own health insurance from your employment benefits package.
b. Your own health insurance that you may have paid for personally.
c. Health insurance obtained by your spouse for your benefit or by your parents
if you are under age and living with such parents.
d. Medical payments insurance coverage from your own automobile policy if you
were driving your automobile and were involved in an automobile collision.
e. Medical payments insurance coverage from the person you were riding with if
you were a passenger in an automobile that has automobile insurance coverage.
f. Your own personal funds if you were not insured and are able to pay medical
bills as they are incurred.
g. Workers' compensation insurance if your injury occurred while you were
working on the job and the injury occurred as a result of your employment.
h. The liability insurance coverage for the person, persons or company who
caused your injuries. Such insurance coverage will most likely be paid at the
time of settlement rather than during the period that you incur such medical
bills.
i. Other possible sources.
Depending on the nature of your case, your medical bills may be covered by
any of the above possibilities. If there is no insurance coverage, your bills
will be saved by you and your lawyer, and will be paid at a later date when and
if your case settles.
3. Will the doctors, hospitals and other medical
facilities wait for payment if I am unable to pay my bills as they are incurred?
In most cases where there is no immediate method to pay medical bills as they
are incurred, many doctors, hospitals, and other medical facilities will wait to
be paid for their services when the case is finally resolved by way of
settlement or verdict in court. It is important to let medical providers know
early in the process if you have no insurance or financial means to pay medical
bills as they are incurred.
4. How does my lawyer make sure that the doctors and
medical facilities will got paid?
Most lawyers have a policy of withholding money from the settlement or court
verdict to pay doctors and medical facilities. Many doctors and medical
facilities require that the patient/client sign a form (usually called a
subrogation or lien form) which allows the attorney to withhold enough money to
pay medical bills directly from the insurance settlement proceeds.
5. Why won't the insurance company for the person or
company who caused my injuries automatically pay my medical bills as they occur?
Most insurance companies for the tortfeasor (the person, persons or company
who caused your injuries) will not automatically pay medical bills as they
occur. There are many reasons for this. One reason is that they do not want to
spend a substantial amount of money for medical bills and then be faced with an
unreasonable or excessive demand at the time of final settlement. In other
words, they do not want to expend a substantial sum of money on medical bills
and then be faced with the chance of defending a lawsuit. Secondly, most
insurance companies want to conclude or settle the claim with one sum of money.
Therefore, most liability insurance companies will wait for the letter of
demand from your attorney and then try to conclude the case all at once with one
payment.
6. How do I keep track of all my bills?
One of the most important things for you to do is to keep an accurate record
of your medical bills. This is how you do it:
a. Ask for a medical bill each time you see a doctor or facility.
Maintain a record of your visits and make sure that you obtain a medical bill
for each visit to your doctor, hospital, physical therapist or medical facility.
b. Save all prescription bills.
Be sure to save copies of your prescriptions and drugstore charges for
medicine that you purchase as a result of your injury.
c. Keep a separate chart with dates, amounts of medical bills, and purchases
of medication.
Maintain a separate record which has the date of the medical service or
purchase of medication, the amount charged, and how the bill was paid (by
insurance, your own personal funds, etc.). This requirement is very important
because it will be your actual record of medical bills incurred as a result of
your injury.
d. Be sure that your lawyer receives a copy of each medical bill,
prescription bill, or other bill related to your injury.
It is important for your lawyer to receive copies of all your medical bills
as well as a copy of your medical bill summary when your case is ready for
settlement. Even though your lawyer may receive copies of bills directly from
the medical facilities, a double check process will assure that your claim
settles for the maximum value. If your lawyer does not have a record of all
your medical bills, your case may be settled for much less than its actual
value.
e. Keep a record of medical bills even if they are processed through a health
insurance carrier.
Even if your medical bills are paid by a health insurance company or your
employer, you must still maintain copies for yourself and be sure to get copies
to your lawyer.
Your Lawyer
1. How will my lawyer handle my case?
After initial meetings with you, your lawyer will investigate your claim.
This usually requires a review of some or all of the following:
a. Witness statements.
b. Police reports.
c. A possible visit to the scene of the incident.
d. A review of appropriate statutory law (laws enacted by your legislature).
e. A review of appropriate case law (laws made by judges who interpret
statutory law).
f. A review of all medical reports.
g. A review of all medical bills.
h. The possible hiring of an investigator to investigate the details of the
incident.
Your lawyer will also contact the insurance company for the person, persons,
or company who caused your injuries. After the initial investigation and contact
with the insurance company, your lawyer will maintain contact with you to make
sure of the following:
a. That you are following the advice of your physicians and other medical
practitioners.
b. That you are doing your best to improve from your injury.
c. That you are providing your lawyer with copies of all medical bills and other
expenses related to the incident.
d. That you are providing records of loss of income from your job.
e. That you are keeping track of potential witnesses in your case.
Medical records will be obtained through the use of authorization forms as
discussed below. Your lawyer will review those medical reports as they come in
from your doctor and will keep abreast of the applicable law relating to your
case.
2. How can I help my lawyer with my case?
The most important thing for you to do is to provide documentation of your
medical bills, expenses and loss of income from your employment. The following
is a list of things that will also help your lawyer with your claim.
a. Return all phone calls promptly to your lawyer.
b. Read all correspondence from your lawyer.
c. Keep all appointments with medical facilities.
d. Maintain a file and record of medical bills, lost wages, and other expenses
associated with the injury.
e. Keep a list of witnesses who may testify about your injuries or about the
incident.
f. Take photographs as instructed by your attorney and maintain copies and
negatives of such pictures.
g. Notify your attorney immediately of any change of address, telephone numbers,
marital status, change of employment or drastic change in your physical
condition.
h. Answer all questions posed by your attorney truthfully and candidly.
i. Sign all forms requested by your attorney.
3. Why do I have to sign so many forms?
Doctors, hospitals, employers, and other establishments will not release
personal information about you without signed written authorizations. It is
against the law, in most instances, to release information about a person, to
anyone, including your lawyer, without formal documentation. Therefore, your
lawyer will ask you to sign such authorization forms which will allow him or her
to retrieve important information about you.
4. How will my lawyer be paid and what is a contingent fee
agreement?
In almost all personal injury cases, your attorney will be paid by keeping a
percentage or portion of the final settlement or court award resulting from your
injury. The percentage will be discussed with you and will be the subject of
what is called a contingent fee agreement. The law requires, for your protection
and that of your lawyer, a written contract which specifies the fee he or she
will charge so there will be no misunderstanding about how much your case will
cost. Most contingent fee agreements provide that you do not have to pay your
lawyer for his or her services unless, and until, the case is settled or is
resolved by a court verdict in your favor. The agreement will provide that your
lawyer will work diligently on your case in exchange for the percentage or
portion outlined in the agreement. As discussed below, however, you will be
responsible for actual out of pocket costs, in addition to the attorneys' fees,
even if the case is not settled or won.
5. What other costs will there be in addition to the
attorneys' fees?
The fee for your attorney is based upon his or her work, time, effort and
expertise. The lawyer's fee also encompasses certain office overhead such as
secretarial time, rent, files, and other built in costs. However, there are also
additional out of-pocket expenses which are incurred specifically as a result
of your case. Some of these expenses include the following:
a. Fees that doctors and hospitals charge for medical reports. Such reports
may cost anywhere from a few dollars for simple copies to $100 or more for
reports that have to be written or prepared specifically by your doctor.
b. Photocopy charges. Insurance companies require significant numbers of
copies of medical bills, medical reports, police reports, witness statements,
and lost income information. Your law firm has to pay for these photocopies and
you will usually be charged a certain amount for each page of copy.
c. Long distance telephone calls. If long distance telephone calls are
required, you will probably have to reimburse your attorney for the actual cost
of each call.
d. Costs of photographs. Photographs are extremely important in personal
injury cases and if your attorney incurs expense in having photos obtained or
enlarged, you will be responsible for such costs.
e. Reports of experts. Reports from experts other than physicians may be
required in your case and, if so, you will have to pay the costs that such
experts charge for their reports.
f. Litigation costs. If your case has to proceed to suit or litigation, there
will be costs incurred as a result of the filing of such a lawsuit.
6. Are the attorneys' disbursements and costs also
contingent and if not, do they have to be paid in advance?
The costs and disbursements outlined above in question 5 are your
responsibility even if there is no recovery in your case. In other words,
although your attorney's fee is contingent upon a settlement or successful court
award, the actual out of pocket costs are not contingent upon successful
recovery. Your attorney may require you to assist in such costs as they are
incurred. Therefore, you may be requested to pay some of the out of pocket costs
in advance of settlement as the case progresses. The reason for this is that it
is not economically feasible for law firms to "finance" personal injury cases.
For this reason, the law provides that out-of pocket expenses are the
responsibility of the client even if the case does not settle.
The Insurance Companies
1. What will the insurance company for the person, persons
or company who caused my injury do about my claim?
After the insurance company has been notified about the claim, a file is
established on you and your case. An insurance clams adjuster is assigned to
your file by a claims manager or claims supervisor. The supervisor may assign
different adjusters to your case as it progresses.
The insurance claims adjuster responsible for your file will maintain contact
with your lawyer. The adjuster will also perform an independent investigation of
your claim to ascertain the following:
a. Who is at fault in your case.
b. Whether or not you bear any fault for your own injuries. This is also
referred to as comparative negligence or contributory negligence.
c. Potential witnesses in the case.
d. The location of the scene of the accident.
e. The contents of police reports, Department of Motor Vehicle reports, and any
other investigative reports that have been filed in the case.
After the initial investigation, the claims adjuster will request medical
reports and any other reports dealing with your injuries. The adjuster will also
review documents about your time lost from work. Most importantly, the insurance
claims adjuster will want to receive accurate records of your medical bills,
prescription bills, hospital bills, therapy bills, and any other actual expenses
incurred as a result of your injury. That is why it is very important for you to
maintain an accurate account of your medical bills, lost wages, and other
expenses which result from your injury.
2. How does the insurance company put a value on my case?
This question is quite complicated. First, the claims supervisor or claims
manager will provide that a certain amount be "set aside" as a potential value
of your case. This figure is usually called "reserves." Such reserves are the
outside value that the company has established on your claim. The reserves may
change as the case progresses. In serious cases, such reserves may equal what
are called policy limits. Policy limits are the outside limit amounts of
liability established in the insurance policy of the person or persons who
caused your injury.
During the preparation stages of your case, the insurance company will keep
track of your medical bills, lost wages, any permanency regarding your injury,
and other factors. The company will also take into consideration the quality of
evidence against their insured, the quality of your witnesses and their
witnesses, extent of liability on your part, and other important considerations
such as previous injuries.
If you had a previous injury in the same area of your body, the insurance
carrier will want to see medical records pertaining to that injury. During the
course of your claim, your attorney will be notified by the insurance company
about the important factors that are being considered in your particular case.
3. Should I communicate with or contact the insurance
company for the person who caused my injuries?
Absolutely not! Under no circumstances should you contact the insurance
company once you have retained an attorney. If you contact the other person's
insurance company, for any reason, you could ruin your entire case with one
question or one statement.
Secondly, because you are now represented by a lawyer, the insurance company,
in most states, is absolutely prohibited from having any personal contact with
you for any reason.
4. Can I contact my own insurance company?
If you have health insurance, medical payments insurance, automobile
uninsurance or underinsurance coverage, there may be occasions when it is
appropriate for you to contact your own company. However, you should always ask
your lawyer whether or not such contact is appropriate. Never contact an
insurance company without first obtaining approval from your attorney.
5. Will the insurance company for the person who caused my
injuries dispute my claim?
If liability and responsibility are well established in your case - that is,
if fault clearly rests with the insurance company's insured (the person or
persons who caused your injury), they will try very hard to settle your claim.
Insurance companies usually dispute the following types of claims:
a. Claim in which the fault rests with someone other than their insured. This
could mean you or someone else involved in the incident who may have caused your
injuries rather than the person who is insured by the insurance company.
b. Claims in which the insurance company and its representatives do not
believe that you are injured, or that you were injured as badly as you claim.
For this reason, documentation of medical bills, lost wages, and other expenses
are extremely important to establish credibility and the existence of your
injury.
c. Cases in which you or your witnesses have lied, exaggerated, or fabricated
the nature and extent of your injury or how the incident occurred.
6. What can I do to convince the insurance company that my
claim is valid?
As stated above, the most important thing you can do is to recover as quickly
as possible from your injury. Insurance company personnel tend to believe those
people who actively try to recover from their injuries. That is why you must
cooperate with your doctor, physical therapist and other personnel who are
trying to help you improve from your injury.
Secondly, insurance companies believe those people who can document their
injuries through medical bills, credible medical reports and accurate lost wage
information that is neither exaggerated nor subject to dispute and
interpretation.
Thirdly, insurance companies usually settle cases easier with those clients
who have been in active contact and cooperation with their attorney.
In summary, it is important for you to try to get better, keep an accurate
record of your expenses, and cooperate with your lawyer and his or her staff.
The Person, Persons or Company Who Caused Your Injuries
1. What happens to the person, persons or company who
caused my injury?
After the incident which caused your injury, the person, persons or company
that you claim may be responsible for your injury was contacted by the insurance
company. Either the person who caused your injury or a representative of the
company who caused your injury gave statements and reports to the appropriate
insurance claims adjuster. Such statements and reports were probably recorded
and there are most likely written reports or transcripts of such statements.
After the insurance company's initial investigation, there is usually little
or no contact between the tortfeasors (the person, persons, or company who
caused your injury) and the insurance company. In other words, the insurance
representative usually does not keep the insured advised about day to day
progress in the case. An exception may be medical malpractice cases. Therefore,
the person, persons or company who caused your injury is probably going on with
their daily lives, hopeful that the case will simply be settled by the insurance
company with little or no involvement on their part.
2. What happens to the person who caused my injury if the
case does not settle?
If the case does not settle between you, your lawyer and the insurance
company and proceeds to litigation (lawsuit), the insurance carrier will again
contact the insured. An attorney hired by the insurance company will be assigned
to defend and represent the tortfeasor, whether the tortfeasor is a person,
persons or company. The insured will be required to participate in the
litigation process and will be required to cooperate with the attorney assigned.
It is important to remember that if a lawsuit becomes necessary, it will be
brought against the tortfeasor and not against the insurance carrier, even
though the insurance carrier will probably be the one to pay the settlement or
verdict.
3. What if the tortfeasor was untruthful or not accurate
about how the incident happened?
Unfortunately, in many cases, the person or persons responsible for the
incident may not tell the complete truth about the incident. It is human nature
for many people to deny liability, fault or blame even in cases where negligence
or wrong doing was obvious. Your lawyer has had many cases where the tortfeasors
did not tell the truth about the incident. In some cases, the insurance carrier
will believe their insured or the insured's witnesses and will deny your claim.
In such cases a lawsuit becomes necessary and the case will proceed to
litigation and sometimes all the way to trial.
In most cases, however, the truth eventually surfaces and the claim will get
settled one way or the other. Your lawyer will investigate your claim in the
hope of obtaining witnesses, evidence, facts and law that support the truth of
how the incident happened.
4. Can I contact the person or persons who are responsible
for my injuries?
Again, absolutely not! If you contact the person or persons responsible, you
could jeopardize settlement of your case. Remember that any statement you make,
even an innocent comment, could be used against you or misinterpreted. It is not
appropriate for you to contact the tortfeasor even if the tortfeasor has not
told the truth about how the incident occurred.
Settlement
1. When will my case settle?
It is impossible in the early stages of a personal injury claim to predict
when that particular claim will actually settle. Some cases settle in a matter
of months after the injury while others can take years to get to settlement or
trial. Your lawyer will usually wait until you have completed recovery from your
injury or have at least come close to recovery before trying to settle your
case. It is important to know the following before your case is settled:
a. What is the total of all medical bills?
b. Will any further medical treatment be necessary?
c. If further medical treatment is necessary, what is the prediction of its
cost?
d. Are any of your injuries permanent?
e. If any of the injuries are permanent, how do such permanent injuries affect
your earning capacity?
f. What was your total loss of income and what other employment benefits were
lost because of the injury?
g. Is it likely that you will lose any further income as a result of your
injury?
There are other factors that must be taken into consideration before
settlement. As the case progresses, your lawyer will have some idea as to the
approximate time that the case may be appropriate for settlement.
2. How much is my case worth?
This question is one of the most frequently asked questions and is also very
difficult to answer in the early stages. It is virtually impossible to predict
the value of a case until all of the information has been collected and you have
recovered or almost recovered from your injury. There are many factors that
determine the value of a case. They include:
a. The actual amount of all of your medical bills.
b. How such medical bills were incurred; that is, from diagnostic tests,
treatments, physical therapy, hospital stays, prescription medication, over
thecounter medication, chiropractic care and other treatment.
c. How much income and other employment benefits were lost as a result of your
injury. This would include lost pay, sick leave used, vacation time used, loss
of insurance benefits and other losses resulting from your injury.
d. The actual extent of your injury and how such injury affected your daily
life. This would include limitations of household activities, sports and leisure
activities, and social life.
e. Whether or not any aspect of your injuries are permanent. This would also
include permanent disfigurement such as scars, blemishes and other disfiguring
characteristics.
f. Whether any of your injuries required hospitalization.
g. The extent of liability on the part of the potential defendant.
h. Whether there is any evidence that you were partly at fault for your own
injuries.
i. The status of the law as it relates to your case.
j. The quality of your witnesses, including those who will testify about the
incident, your injuries, and your medical treatment.
k. Other factors such as pain, suffering, inconvenience and loss of consortium
(how the injury affected your marital relationship).
1. which insurance company is involved in the case.
The above are just a few of the factors that must be taken into consideration
in determining a settlement value. Some factors are more important than others
and because insurance companies require specific documentation, it is your
responsibility and that of your lawyer to provide the insurance company with as
much clear information as possible to support your claim.
3. Who determines the settlement value of my case?
Your lawyer, and the firm in which your lawyer is a member, have a great deal
of experience in the area of personal injury law. After evaluating all of the
factors enumerated in question 2 above, your lawyer will discuss the case with
you to arrive at a possible settlement range.
Once you have agreed upon a general settlement range, your attorney will
present a demand to the insurance company in the hope and expectation that the
insurance company will pay a settlement within the range determined.
It is important to know that you have the ultimate decision to make, but,
because of your lawyer's experience in this area of law, you should seriously
and carefully consider any recommendation he or she makes as to the ultimate
value of your case.
4. What steps will be taken to settle my case?
After all the investigation and research has been completed, your lawyer will
keep in touch with the progress of your recovery. Hopefully, your injury will
not be a serious one and eventually it will be appropriate to attempt
settlement. After a settlement range has been decided upon, the lawyer will send
what is usually called a letter of demand to the insurance company.
The letter of demand summarizes the important factors of your claim and is a
formal request to initiate settlement discussions. After the insurance carrier's
claims adjuster receives the letter of demand, he or she will meet with
appropriate supervisors to obtain settlement authority. Once the adjuster has
his final authority figure, he will respond and negotiations between your lawyer
and the insurance adjuster will take place.
Some cases can be concluded with a series of telephone conferences, office
conferences, and correspondence. The period of time required to complete
negotiations usually depends upon a number of factors including the nature of
the insurance company, how busy the insurance adjuster is, and other factors.
5. Will the insurance carrier pay the demand figure in my
attorney's request for settlement?
In almost every case, the final demand figure issued by your attorney in the
first letter requesting settlement is substantially higher than the actual
settlement range. This is a common negotiation tactic for personal injury cases.
Because of your attorney's experience in this area of law, a request for
settlement will usually be made in an amount that gives both parties a fair
amount of room to negotiate. Therefore, do not consider the demand figure to be
the actual settlement range of your case.
6. How long does it take to complete settlement after the
first letter of demand?
In most cases the amount of time it takes from the first letter of demand to
final settlement can be several weeks to a few months or sometimes longer. In
smaller, clear cut liability cases where the injuries are fairly minimal, the
process can be achieved in a month or two usually. Every case is different,
however, and your lawyer will advise you about his opinion on the amount of time
it will probably
take to settle your case. There are many factors which affect the response time
and the adjuster's final offer. They include:
a. How many files the insurance adjuster is handling.
b. How well documented the claim has been during the preparation period.
c. Whether or not liability is clear on the part of the insurance company's
client.
d. Whether or not there is any comparative negligence on your part.
e. Whether or not there are any other parties that may be responsible for your
injuries.
f. The internal claims process of the particular insurance company including the
number of supervisors required to approve the adjuster's settlement offer.
g. How reasonable your lawyer's demand figure is.
h. The time of year (some months are better for settlement than others).
i. The state of the economy as it relates to the insurance claims process.
j. Other possible factors.
7. Because the insurance company will undercut my
attorney's request for settlement, why not request a very large sum to begin
with?
Many people believe that because the carrier will come back with a lower
figure than the demand, the attorney for the injured person should request a
very high figure to begin with. Such a process never works. If the first demand
figure is way out of line, most insurance companies will not even respond to the
request for settlement.
Asking for a high figure for settlement that is ridiculous will often delay
the process and sometimes will make the insurance company refuse to make any
offer at all. Therefore, it is important that the first demand be reasonable at
least. Because your lawyer is experienced in this area of law, he will have the
best idea as to amount for the first demand figure.
8. After the insurance company and my attorney agree upon
settlement, how long will it take to get my money?
After an agreement has been reached between the insurance company and you
through your lawyer, it usually takes between two and six weeks to complete the
settlement process. There may be exceptions to this range, but the average time
to sign all the documents, receive the check, and figure out the exact proceeds
for each party usually requires at least a month.
9. What has to be done before I get the money that is due
me from the settlement?
First, the insurance company will require that you, and perhaps your spouse,
sign a release. This is a document that settles your claim. In the release, you
will read language stating that you are forever giving up your right to sue the
person, persons, or company who was responsible for your injuries. In exchange
for giving up your claim, you will receive a certain sum of money when the
insurance company receives the release.
Second, your lawyer will have to pay any medical bills that have not been
paid and may be required to reimburse any insurance company that has expended
money for medical bills such as your health insurance carrier, automobile
insurance carrier or some other party who paid for your medical bills resulting
from your injury.
Third, your lawyer will deduct attorneys' fees, actual out of pocket
expenses, and other possible costs associated with the claim. After all
deductions have been made for medical bills, possible liens, attorneys' fees,
and costs, you will receive the balance in a check processed from your own
attorney's office.
10. After attorneys' fees, medical bills, liens, and
costs, will there be anything left for me?
In most cases there should be a fair sum of money left for you to compensate
you for pain, suffering, and some loss of income. There are many factors
influencing settlements. Such factors include the amount of your medical bills,
whether those medical bills have to be paid from the settlement, whether you
actually lost income from your job or used sick leave, etc. If you have to pay
all of your medical bills from your settlement or reimburse a health or medical
payments carrier, this will substantially affect the final amount.
You must remember that the law allows you to be compensated for your injury
- to give you compensation for lost wages, medical bills, and a reasonable
amount for pain and suffering. The law does not provide that injured parties
"get rich" from insurance claims, especially in small cases. Your attorney will
do his or her very best to see that you get fair compensation for your injuries.
Litigation if The Case Does Not Settle
1. What happens if the insurance company does not meet our
settlement range and the case does not settle?
If the insurance company and your lawyer cannot agree upon the value of your
case, it may be necessary to begin a lawsuit. This is also referred to as
litigation. The lawsuit will usually be brought against the person, persons, or
company who caused your injuries and not against the insurance company unless
the case is an uninsured or underinsured motorist case.
In some cases, your lawyer may suggest waiting a period of time before
commencing the lawsuit in the hope that the insurance company will increase its
evaluation of your claim. However, in cases where the parties are significantly
far apart with respect to the value of a claim, litigation is usually necessary.
2. What factors would cause my case to go to litigation?
There are usually several reasons why a case does not settle including the
following:
a. The insurance company believes that you and your lawyer have asked for
more money than they are willing to pay voluntarily for the claim.
b. Liability, that is, "fault," is either being denied by the insurance company
or the insurance company believes that you and/or some other party bear some
responsibility for your own injuries.
c. The insurance company, because of internal reasons or company policy, resists
payment of your claim and is forcing claimants to go through the trouble of a
lawsuit.
d. The insurance company is stalling for time hoping that you and your lawyer
will reduce your value of the claim.
e. The insurance company does not believe that you were injured, or that you
were injured as badly as you claim. Therefore, the company is requiring that you
pursue a lawsuit to prove your injuries.
3. How does a lawsuit affect me?
If a lawsuit becomes necessary, your attorney will explain in detail what you
will have to do. Usually the process takes the following steps:
a. After final investigation and preparation, your lawyer will file a claim
in court by preparing what is known as a Summons and Complaint. This is usually
done in the lawyer's office without your involvement.
b. The Summons and Complaint are served upon the person, persons, or company
who caused your injuries, and the responsible party is referred to as the
defendant. You will be called the plaintiff.
c. After the defendant is served with the complaint, the insurance company will
hire a lawyer to defend the lawsuit and that lawyer will file what is known as
an Answer to the Complaint. The Answer usually denies responsibility for the
injuries, denies the extent of your injuries, and may possibly seek to bring in
other parties who might have been involved in the incident which caused your
injuries.
d. A process is started called discovery in which both sides seek information
from each other. You will be involved in this process. The process includes some
or all of the following:
1 . Questions, called "interrogatories," which require written answers.
2. Oral testimony from you and other parties called "depositions." Such
testimony takes place in front of the lawyers with a court reporter who takes
down the questions and answers in order to prepare a transcript.
3. "Requests for production of documents" in which the lawyers ask for medical
reports, witness statements, medical bills, and other documents relating to the
case. In most cases, your lawyer will have to send such documents to the other
lawyer even if they have already been supplied to the insurance company.
4. "Requests for admissions" which is a process that requires the parties to
narrow the issues by admitting certain facts that are not in dispute.
5. Pretrial procedures such as motions in court and other tactics that process
the case to trial.
6. Preparation for trial including possible video depositions of your doctors,
meeting with witnesses, writing briefs, and appearances of your attorney before
the trial judge.
7. The trial, finally, if your case does not settle before the trial date.
4. Is it possible that my case will settle before trial?
Yes. Many cases settle during the lawsuit process while a small minority of
cases have to proceed all the way through trial. It is impossible to predict
when or if any particular case will settle.
5. What will I have to do if my case proceeds to a
lawsuit?
After the lawsuit is commenced, your lawyer will contact you about your
duties. You will probably have to answer interrogatories and attend a
deposition. During litigation it is important for you to do at least the
following:
a. Stay in touch with your lawyer.
b. Inform your lawyer of any changes of address, phone number, work status,
marital status or changes in your injury.
c. Respond to your lawyer's letters and phone calls if he or she requests
contact.
d. Prepare and obtain any documents requested from your lawyer immediately after
the request.
e. Keep track of all medical bills and lost income and report such information
to your lawyer.
f. Stay out of trouble which could be used against you in court such as drunk
driving, shoplifting and other criminal activities.
g. Maintain your employment status and avoid confrontations with your employer
that could be used against you at trial.
6. Does a lawsuit require a substantial amount of work
from my lawyer and, if so, will I be charged extra?
Some contingent fee agreements provide additional percentages if a lawsuit is
required. Your attorney will advise you of this at the time he or she accepts
your case. Litigation is a very time consuming and difficult process. Your
lawyer will have to prepare documents for court, take depositions, research the
law, correspond with the defense attorney, correspond with you, correspond with
your witnesses and doctors and prepare for trial. Your file will grow in size
and your lawyer will probably have other people working on your case such as
secretaries, paralegals and associates. Therefore, you can expect that your
lawyer will be very busy preparing your case for trial.
7. Will I have to answer interrogatories?
Interrogatories are questions sent to your lawyer by the lawyer for the
defendant. You and your lawyer may be asked to answer a number of questions,
usually 30 or more, with various sub parts. Some of these answers will be
prepared by you and some of them will be prepared by your lawyer.
You will usually be asked about your complete medical history, educational
history, work history, and a number of questions about the incident and your
injuries. It is important that you take time to prepare your answers carefully
and accurately. If you leave something out that is important, or if there is a
piece of information that is not accurate, such mistakes can be used against you
at trial or at your deposition. It is important to prepare your answers within
the time frame requested by your lawyer.
Most clients do not like having to answer detailed questions such as
interrogatories and often they put off the task until the last minute. Do not
fall into this trap. If you take the time to prepare your interrogatory answers
accurately and carefully, you are more likely to have a successful case.
8. What are depositions?
Depositions are very important procedures because a deposition is usually the
first time you will actually testify about your case. Depositions take place in
the office of one of the lawyers involved in the case. In your deposition, the
attorney for the defendant will ask you questions about your injuries, the
incident, and background information about you and your family. Your answers
will be taken down word for word by a court reporter who will transcribe your
testimony. The transcript of your testimony will be read by all attorneys,
representatives of the insurance company, and portions may be used at the trial.
9. What if I don't want to have my deposition taken?
Unfortunately, you don't have a choice. If you have commenced a lawsuit
involving personal injuries, the law requires that you must be deposed if
requested to do so by the other side.
10. Does the person or persons who caused my injuries
have to be deposed also?
If your lawyer decides it is necessary, a deposition of the defendant or
defendants will also take place. In some cases, your lawyer may believe that it
is better not to take a deposition. Your attorney will make that decision.
11. How do I prepare for a deposition?
Your lawyer will assist you in preparing for your deposition. In most cases
you will be given plenty of notice so that you will have tune to prepare. In
addition to advice given to you by your lawyer, you should consider the
following:
a. Dress appropriately as though you were going for a job interview.
b. Read your interrogatory answers and any other documents your lawyer instructs
you to read. Read them carefully don't just skim through them. Preparation will
mean a better chance of a favorable settlement.
c. Tell the truth even if you think the answer might hurt you. The worse
possible answer is an answer which is a lie. If the defense attorney catches you
in a lie, he or she now has the opportunity to destroy your entire case.
d. Don't argue with the defense lawyer. It will never do you a bit of good to
argue with the defense attorney.
e. Be polite. It can only help you and will never hurt you.
f. Listen carefully to the lawyer's questions. Do not jump ahead and answer the
questions before the lawyer finishes.
g. Think before speaking.
h. Don't agree just because the defense attorney asks you to agree. Some defense
attorneys use the trick of making several statements to which you agree. Then,
they throw in a final statement which may not be true, but because you are so
used to agreeing, you admit something that you should not. Therefore, it is
important to listen to each statement or question carefully.
i. Don't answer more than you have to. Some witnesses ramble on and on. Rambling
will destroy your case. Simply answer the questions and do not explain your
answer unless you are requested to do so.
j. Look the defense attorney in the eye as much as possible.
k. Speak clearly.
12. Why are depositions so important?
There are several reasons why your deposition is important.
a. The defense attorney will be sizing you up. If he or she is impressed with
you and your testimony, settlement becomes more likely.
b. The deposition is excellent preparation for trial. It gives you the
opportunity to experience testifying.
c. Your testimony, if it is false, can be used against you at trial.
The Trial
1. When will the trial take place?
This question is impossible to answer because there are so many factors which
effect when your case will actually be reached for trial. Such factors include:
a. The number of cases waiting for trial in your county or jurisdiction.
b. The number of judges available to hear trials in your jurisdiction.
c. Whether or not all discovery, such as interrogatories and depositions, have
been completed by both sides.
d. The type of trial calendar set up in your jurisdiction. (For example do
criminal trials have priority? Is there a so called "trailing docket"?)
e. Whether or not the lawyers in the case have other trials pending in other
jurisdictions.
f. Other possible factors.
Your lawyer will be able to tell you approximately when your case will be
reached for trial. In some counties it takes a year or less to get to trial
after the suit has been filed. In other counties it can take several years.
2. How much notice will I get before trial?
Usually you will receive plenty of notice to prepare for trial.
Unfortunately, in some jurisdictions, you may have to "get ready" a number of
times before your case is actually reached. In some jurisdictions, the court
will set a large number of cases for trial, but only a few are actually reached.
Your lawyer will explain this process to you.
3. What happens in a trial?
In cases which are not complex, the trial process usually involves a specific
format. Do not count on television shows to accurately portray how trials
actually occur. With some variations, depending on the jurisdiction, your trial
will go something like this:
a. The judge will open the trial by calling the lawyers, clients and
prospective jurors into the courtroom.
b. A jury selection process called "voir dire" takes place. In some states, the
lawyers can ask questions of prospective jurors before selecting the jury. This
process allows the lawyers to determine potential bias or unfairness on the part
of prospective jurors.
c. Jury selection takes place in which jurors are called by lottery fashion. The
lawyers may exclude some of the jurors for various reasons.
d. After the jury is selected (usually 6 or 8 people), the lawyers will make
opening statements. These opening statements are brief summaries of the case so
that the jury will have a road map of the case. Opening statements are usually
short (less than 30 minutes).
e. After opening statements, your lawyer will present your case by calling you
and other witnesses to the witness stand for direct examination. Such witnesses
may include your doctor, employer, friends, family, and other witnesses who can
testify about the incident or your injuries.
f. After each witness has finished direct examination by your lawyer, the lawyer
for the defendant will be entitled to cross examination. That is, you and your
witnesses may be asked questions by the other lawyer.
g. After cross examination, your lawyer may have a few additional questions and
this process is called re direct examination.
h. After your lawyer finishes presenting your case, the defense lawyer is
allowed to present the other side of the case by calling witnesses for the
defense. Your lawyer will be entitled to cross examine those witnesses.
i. After both attorneys have finished all questioning and all presentation of
evidence, the judge will allow closing arguments. In closing arguments the
lawyers have the opportunity to summarize the case to the jury and ask for a
verdict. Your lawyer will be allowed to go first, followed by the defense
attorney. After the defense attorney finishes his or her closing argument, your
lawyer may be offered a brief period of time for rebuttal.
j . After closing arguments, the judge will instruct the jury on the law and how
it should be applied to your case. This process usually takes an hour or more
depending on the judge. The judge's instructions are the final words heard in
the case before deliberation. The judge is not allowed to influence the jury one
way or the other as to the potential result in the case.
k. After the judge completes instructions, the jury is allowed to deliberate on
your case in a closed room. This process usually takes several hours.
1. When the jury has finished deliberation and reaches a verdict, the judge will
call everyone back into the courtroom and the verdict will be announced. You
will find out at that time whether or not you won your case and how much money,
if any, has been awarded by the jury.
4. What should I remember in order to be the best possible
witness?
The trial is the most important part of your case. It is your only day in
court and you will probably not get a second chance. Nobody is perfect, but you
can prepare yourself to be as good a witness as possible. The following
recommendations will assist you to do the best job possible.
a. Review your deposition transcript and interrogatory answers if your lawyer
asks you to do so. It is important for your trial testimony to be consistent
with your discovery.
b. Do not mention insurance. If insurance or anything about it is injected into
the case, the judge will probably declare a mistrial and you will have to wait
for another trial date.
c. Dress appropriately. You should not wear flashy clothes, a lot of jewelry or
a lot of makeup. The type of clothing you would wear to a church function or a
PTA meeting is appropriate.
d. Review your medical history so that you have a good idea about injuries you
have had, doctors you have seen, hospitals which have treated you, etc.
e. Never exaggerate. Do not exaggerate about how the incident happened or about
your injuries. An exaggeration will almost always hurt you and never help.
f. Don't be a "wise guy." A courtroom is not the place for being coy, wise or
funny. If something happens in the courtroom that is humorous, it is all right
to laugh with the jury, but do not try to be a comedian.
g. Be courteous to everyone including the defense attorney and court personnel.
Jurors are impressed by polite people. Call the judge "Your Honor," show respect
to courtroom personnel, and call the defense attorney "Sir" or "Ma'am" from time
to time.
h. Never lose your temper. Defense attorneys know one way to win a case get the
witness to lose his or her temper. If you feel badgered by the attorney, react
courteously. Jurors are impressed by people who can remain calm under cross
examination.
i. Listen carefully to each question and take your time to answer. Do not
anticipate. Wait for the questioner to finish before you speak.
j. Look at the jurors. This cannot be stressed enough. Look jurors in the eye
when you testify just as if you were talking to your best friend or closest
relative. Jurors tend to believe people who can look them straight in the eye.
k. Speak clearly and answer with "Yes, " "No, " etc. and not with words like "Ya,"
"Ahah," "Um," etc.
1. Do not look to your lawyer for answers. You are the witness - not your
lawyer. If you look to your lawyer for answers, the jury may become suspicious.
m. Be yourself. You are likely to be nervous and this is appropriate because
jurors expect that people who testify in court will be nervous. After a brief
period of time, you will be comfortable, especially if you are telling the
truth.
n. Do not put on a show about your injuries. Jurors are suspicious about people
who try to exaggerate or display their injuries when they sit down, get up,
walk, etc. Jurors are able to ascertain a phony gesture just like adults know
when children are faking illness.
o. Tell the truth! This is repeated because it is so important. There may be
things about your case that will hurt you - no case is perfect. If so, don't be
afraid to admit the truth. The defense lawyer would love to catch you in a lie
because one lie can destroy your case.
After the Trial
1. If we win, how long does it take to receive the money?
If a verdict is rendered in your favor, it usually takes a few weeks to a
month to finalize the results. If the defense attorney does not appeal the
verdict, the lawyers will work out the final figures with respect to the
verdict, interest, court costs, deductions and attorneys' fees.
2. What happens if we lose?
Hopefully, you will not lose. If you do, your lawyer will discuss the
possibilities of appeal. Appeal is usually a very expensive process but your
lawyer will advise you whether or not appeal is appropriate.
3. If we lose, is it still possible to get a settlement?
In a few rare cases, the insurance company may be willing to offer a nominal
settlement to avoid an appeal. This is not very probable. The best thing to do
is to concentrate on winning your case. If your case is clear on liability
(fault of the other party) and you have prepared yourself well for trial, the
chances are that you will win your case. Justice usually prevails.
Conclusion
Your personal injury case is very important to you. Your lawyer knows this.
In today's society, insurance companies have a lot of power, money and
influence. However, most insurance companies try to be fair in settling ordinary
cases. They do try to compensate people who have been legitimately injured as a
result of the negligence of someone else. It is important for you to have a
positive attitude throughout your case. This requires making an active effort to
recover from your injuries. Cooperate with your lawyer. Be honest about your
case with everyone involved. The Constitution of the United States, your state
laws and fairness dictate that injured victims should be compensated for
injuries resulting from the negligence of a third party. This is the law and it
is on your side. Place your faith, confidence, and trust in your lawyer and
yourself and you will obtain justice.
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