The Process of a Lawsuit
The typical court is divided into divisions: criminal, civil, juvenile, etc. Civil lawsuits that involve motor vehicle crashes are known as personal injury law. Personal Injury law is the umbrella over several different types of law, one of which is motor vehicle accidents and injuries. What you have done before you sought the help of a personal injury attorney is as important as what happens afterwards. It is important to seek medical attention as soon as possible after the accident. This way, no one can claim that your injuries happened later. It is advisable for you to keep a written record of everything pertaining to the case - damages, injuries, dates, contacts with your insurer - anything that you can think of that has to do with your claim. Personal injury lawsuits typically take a long time, and memories have a tendency to fade. Also remember that any statements you make to anyone, whether it be to family members, friends or co-workers, can be used against you. It is never a good idea to be interviewed by an adjuster for the insurance company before you have spoken to an attorney who can protect your interests. It is also extremely important never to sign any document without an attorney's input. Usually what happens is an insurance adjuster will call you within a couple of days of an accident, get your permission to tape record the interview and then ask you questions designed to protect the insurance company. You should never participate in this phone call until you talk to an attorney.
Whether you are suing an insurance company or an individual, the process is the same.
First, in all cases, there is a statute of limitations - meaning, a time limit in which to file a lawsuit. If an injury case is not settled within this time frame, the claim is forever barred. It is very important to discuss with an attorney what the statute of limitations is, and when it starts to run.
Once your attorney advises you that your claim is ready to be settled with the insurance company, he/she will informally attempt to resolve your case before filing a lawsuit. Usually, this is done by way of exchange of demand letters and medical information. If the case does not settle through this informal process, then your attorney must file a lawsuit before the statute of limitations runs.
Filing of the Lawsuit
The fist step in the beginning of a lawsuit is deciding who is responsible for your injury and what are the legal claims against them. This document is called a complaint. In California, once they are served, they must file a response, called an answer within 30 days.
The term discovery means that evidence must be shared by both attorneys. In this discovery process, both sides will begin a process of exchanging information. You will often be asked to complete what are called interrogatories. Interrogatories are simply a list of questions that you have to answer in writing by a certain date. This list, however, can be hundreds of questions long. Sometimes these questions seem to have nothing to do with your case, but oftentimes they are a roundabout way to getting to other information that they would like to have. The court sometimes will limit the number of questions that can be asked. After this, you will be asked to sign a verification under penalty of perjury that you have answered these questions truthfully.
Request for production is simply a series of requests for other things that are relevant to your case, such as written documents, photographs or physical evidence.
There will also be depositions. These are in-person meetings that are typically recorded by video or by a court reporter. The opposing attorney(s) may ask questions of potential witnesses who would be testifying at trial. These witnesses could include family members, eyewitnesses, your doctor and any experts. Depositions can make or break a case, so the attorney and the person being deposed need to prepare in advance. As you might imagine, the person testifying (such as your doctor) and the person recording the deposition are not doing this for free. The costs are usually advanced by your attorney and then repaid out of any settlement.
In some cases, the insurance company can require you to be examined by one of their doctors. However, your attorney can make sure that this examination is fair. You need to also be aware that any statements that you make to your doctor are fair game for the opposition - so again, be honest and consistent. Also, make sure you have gone to all of your medical appointments. Do not stop and start treatment later. If you do, judges and juries will often believe that you have fully recovered from your injuries when you stopped the first time.
Motions are documents written by both attorneys and filed with the court to ask the judge to rule on specific aspects of your case. A motion is basically an argument for the judge to rule a certain way based on previous cases. When a motion is filed, a copy is sent to the opposing side and a date is set for both attorneys to appear in court. They then argue the merits (or opposition) of the motion and the judge decides
who wins. When the judge rules on motions, it basically helps define the case by limiting or allowing certain evidence. A motion can also be used to request that the case be thrown out entirely. Of course, the judge needs to see that there are compelling reasons for this to happen. Most judges feel that individuals should see their case to completion, so this does not happen very often.
Each side may also issue subpoenas. A subpoena forces someone who may not be willing to go to a deposition or testify at trial or forces someone to produce records that they may not want to release. An example of this would be when your insurance company sends a subpoena to you requesting your employment or financial records, or even your medical records. Your attorney can oppose these subpoenas to protect your privacy.
In California, the law requires both sides to try to settle their case at the end of the discovery process by either mediation or arbitration. This process can either be binding, which means a ruling effectively resolves the case, or non-binding, which means it is only advisory and does not have to be followed.
If the case does not settle during this phase of exchanging information, it will eventually go to trial. There are two types of trials - jury trial and what are known as bench trials. Bench trials are trials in which the judge serves as both judge and jury. Depending on the case, it is more advantageous to have one or the other. For example, a jury might find a plaintiff more sympathetic than a judge and would consequently award more money than a judge alone. If there is to be jury, typically a day or so will be spent picking a jury. During this
process, both attorneys submit questions to potential jurors so that they can anticipate any problems or biases that the jurors might bring when deciding the case.
During the trial, expert witnesses will often be called. As stated before, every case is different, and usually involve many different issues. Many of these issues are very often complicated and difficult to prove, so your personal injury attorney will determine which experts will be needed. Expert witnesses do charge money for their services, and these costs are usually paid up front by the attorney (to be repaid at settlement), depending upon which side they are testifying. Generally, experts are testifying about liability (who is
at fault, or assigning a percentage of blame) and injury.
There are times that a case will come down to "he said, she said" - basically there were no witnesses and it is one person's word against another. Again, it is important to be honest. Do not exaggerate your damage with investigators or injuries with your doctor because it will come back to haunt you and possibly sink your case entirely. You need to be credible in these types of cases.
Resolution of Your Case
When you win your case, the costs that your attorney paid for (such as experts, filing fees and depositions) are taken out of the settlement. Your attorney's fees, typically 25% - 40%, are taken out as well. This may seem like a lot, but since the attorney is fronting all of the costs (including paying himself/herself any employees and overhead), he/she is taking on all the risk of losing that money as well. One thing to be aware of is that if a case is lost, the opposing side may ask for "costs". This is essentially reimbursement for the money they have spent in experts, depositions, lawyer time, paralegal time - everything down to the cost of photocopying. This expense does not fall on your attorney, but on you, so it is prudent to remember that fact when discussing possible settlement offers with your attorney.
An auto accident attorney is an important factor which may determine the outcome of your claim. Every claim is different, and must be evaluated on an individual basis, so the information provided here is for general informative purposes only, as it simplifies complex legal issues. It is not intended to be legal advice. For information about your specific claim, please contact an auto accident attorney to evaluate your situation.
As consumer justice attorneys, Phillips Law is dedicated to assisting and fighting for individuals who have been injured, disabled or had a family member killed in all types of vehicle or pedestrian crashes in Sacramento and the Gold Country area. We offer legal help and assistance in auto, truck, bus, motorcycle, bicycle and pedestrian cases. We are a local firm emphasizing personal contact with our clients.
We invite you to call us at (530) 265-0186 to schedule a confidential, no-charge consultation to answer any questions you may have, or, if you prefer, you can e-mail us from the Contact Us page.