Personal Injury Settlements

Litigation means going to court. Court is actually process that ends in a trial. The trial is similar to what is seen on television or on film: witnesses come to court to testify, documents are presented, and lawyers argue about what it all means. Leading up to the presentation of a client's case in court there are many, many procedures which must be complied with in order to get the case to trial. Failures along the way can damage or even destroy a case. What follows is a brief overview of the court process in California with respect to personal injury cases.

The first recommendation about going to court is to try to avoid it if possible. Settlement is faster, more certain, and less expensive than going to court. Not all cases can be settled or have the possibility of settlement without some court involvement. This may be for a variety of reasons including access to evidence, one side or the other needing a reality check, one party being worn down either financially or by the distraction from their business or personal affairs, or their prospects for a negotiated result are better than what a court may impose. Of course some cases must go to trial because of an otherwise irresolvable dispute or to test or change the law.

Generally people first try to settle their personal injury case before resorting to the court system. The settlement talks are usually with the other party's insurance company. This is difficult to do without legal representation because the insurance adjusters are trained and experienced in investigating and negotiating injury cases. This is what they do all day every day. They handle hundreds of cases at a time. They are trained and continually receive training as part of their jobs while you have your one case. Who is more familiar with the process? Who is in a better position to take advantage of the situation? Who is perhaps too personally involved in the situation to have perspective on it? These are all reasons to hire an attorney to help with a personal injury case.

Other reasons to hire counsel include investigating the accident and preserving evidence. Remember, the injured party has the burden of proof. Without proof, the injured party loses. Your attorney can also provide guidance about decisions on healthcare choices, and will insulate you from your insurance company and the other driver's insurance company. Your attorney will help you respond to requests for information and adversarial recorded statements. Your attorney will also obtain your medical records and bills to document your damages and will present the evidence to the insurer to obtain a settlement for you. Your attorney will help you maximize your insurance coverage. For example you may have insurance that will pay for your damages even if the other party does not carry enough insurance or lacks insurance entirely. This insurance may cover you even if you are on a bicycle or on foot.

Personal Injury Litigation

If the case cannot be settled by negotiation and agreement, it may be necessary to go to court.

Court cases begin with a complaint, which sets forth the legal theories for what the plaintiff (the party initiating the case) wants.

There are time limits for filing court cases. The failure to take appropriate legal action within the time limits provided by law will lead to the loss of rights and even prevent a party from having the case heard in court or settled. These time limits depend on the legal theories involved, and they can be difficult to calculate.

Next the court papers including the complaint, summons, and other papers must be served on the defendant or responding party. The defendant has a limited amount of time to file an answer with the court. In personal injury cases the defendant usually has some form of insurance, and the insurance company handles the investigation of the accident as well as the defense of the lawsuit. If there is no insurance then it is up to the defendant to hire an attorney or try to defend themselves in the case.

The answer is a legal document which must be in a particular form. A letter will not suffice. A case may be lost or damaged by a poorly drafted answer. The answer is also an opportunity for the defendant to list its responses or bring up affirmative defenses or new matters which, if proven, may provide a partial or full defense to the case. In addition a defendant may file its own complaint back against the plaintiff or bringing in new parties to the case. This is called a cross-complaint, and it must be served and responded to just like a complaint.

If a defendant is properly served but fails to file an answer on time they may be put into default. A party who defaults is barred from participating in the court case, and a judgment may be obtained against them. Defaults and default judgments may be removed (set aside) but there is a limited amount of time and a limited basis for doing so. Ignoring a court case is a very dangerous thing to do.

Shortly after the complaint is filed the parties have the right to engage in discovery. This means they may use court procedures to obtain information and evidence from each other as well as from third parties. They may, for example, ask opposing parties written questions, ask for copies of documents, ask that factual or legal statements be admitted or denied, question witnesses, and/or inspect real evidence or properties. Cases are won and lost during the discovery process because it represents an opportunity to obtain evidence which may be necessary to prove a case or a defense. Failing to comply with discovery may lead to monetary fines or even the dismissal of a case.

Courts usually require the parties to a case to use some form of alternative dispute resolution, i.e. an alternative to a trial. The two most common forms are arbitration and mediation. Arbitration is similar to a trial in that the parties present evidence, and a neutral decision maker decides who is right, who is wrong, and what the damages are. Mediation is much less formal. It is up to the participants to decide how they wish to proceed. A neutral party facilitates communications between the parties but does not impose a decision. It is up to the parties to reach their own agreement which makes sense for them. The resolution may not even involve the law or the strict parameters of the lawsuit. In order to foster communications and encourage resolutions, mediations are confidential.

If the case is still not resolved at this point it will be set for trial. Within the 90 to 120 days prior to trial final discovery is completed. The parties may engage in expert witness discovery to find out if each party will use experts; if so, they will have an opportunity to examine the experts as to their opinions and the basis for the opinion. Common expert witnesses in personal injury cases are accident reconstructionists treating healthcare providers, other medical experts, and economists. Cases may be won or lost based on the opinions of expert witnesses who may prove or fail to prove liability, causation or damages.

There will be a mandatory settlement conference shortly before the trial, perhaps a week or less. If the case does not settle at that point it will proceed to trial.

Either side has the right to a jury trial. A jury is composed of twelve members of the community who do not know the parties, the lawyers or the facts of the case. They hear the evidence and decide what happened, whether someone is lying, etc. The judge decides what law controls the case and instructs the jury in how to apply the law, and the jury applies the law to the facts of the case.

If both sides waive a jury the case will proceed as a court trial. That means the judge assigned to the case decides the facts and the law. Court trials are more streamlined than jury cases. Depending on the political climate of the county where the case is pending a jury may be better for one side than another.

In court the plaintiff gives an opening statement to tell the judge or jury what the case is about. It is something of an introduction to who will be involved in the case and a preview of the plaintiff's evidence. The defense can give an opening statement after the plaintiff completes their opening statement or wait until just before the defense presents their side of the case.

The plaintiff then presents their witnesses and evidence. Live testimony is critical because, generally, statements made outside of court are generally not admissible in court. You need live witnesses to prove what happened and to have documents admitted into evidence. You can use the power of the court to force people to come to court to testify. An unwilling witness, however, may also damage your case.

Each side's witnesses are subject to cross-examination by the opposition. This is a familiar situation where the other side has the opportunity to ask their questions of a witness to try to discredit them, show their memory is poor, elicit bias, etc

If the plaintiff fails to prove their case it may be dismissed. Assuming the plaintiff proves their basic case, it then becomes the defense's turn to present their witnesses and evidence. The defense's witnesses are also subject to cross-examination.

Both sides will also have the opportunity to bring in rebuttal witnesses. Finally each side gives a closing argument in which they review what was proven or not proven and why the judge or jury should find for their side.

After deliberations a verdict is made in favor of one side and against the other. The winning side is awarded a judgment usually in the form of X must pay Y so much money. Unless the judgment is paid voluntarily the winner will have to take steps to enforce the judgment and force the other side to pay.

Generally each side bears their own attorneys' fees unless there is a contract or a law that gives the winning party attorneys fees in the lawsuit. The winner of the case is generally entitled to some of their out-of-pocket court costs. So if the plaintiff loses the plaintiff may owe the defendant money for the defendant's court costs.

If you have been injured in an accident it makes sense to get legal representation right away so you will have help with all these different procedures.