Should You File a Personal Injury Lawsuit?

You've been in an automobile accident. Your car is totaled or in the Shop. You're missing work and your vacation or personal time is almost exhausted. You have major medical bills and face a long period of physical therapy after you recover. And, it was the other driver's fault!

The other driver's insurance representative keeps calling you. He or she is oh, so nice and concerned about you. The company won't admit liability, but they offer to give you a lump sum settlement now to cover your estimated medical costs. Maybe they offer to pay for a rental car while your car is being repaired, or to pay the deductible to your insurance company for the repairs. But, they want an answer NOW, before you can talk to an attorney. They may tell you that you don't need an attorney, the two of you can work things out. You're confused - what is the best thing to do?

Consultations with a Personal Injury Attorney are usually free. Below are some things to think about before you make a decision. This is just a partial list of what a Personal Injury Attorney can do for you:

• What if you miss work, but you get disability and use your vacation/personal leave time? Your attorney can still claim loss of wages for all the time you were off of work
• What if you settled without an attorney and your medical expenses exceeded your settlement? You would be out of luck. Your attorney will not settle your case until all your treatment is finished and all the bills are in. If future treatment is indicated, he will include that in his settlement proposal. He can also negotiate with the healthcare providers to reduce your bills, so you keep more of the settlement money
• What if you need a Specialist not covered by your insurance?
• Were there other people in your car? Maybe a child who will have scars that can't be fixed until they're full-grown?
• What happens if you will be unable to return to the same line of work you were in before the accident?

Call the office of a Personal Injury Attorney to find out for yourself how they can help you and your family. When you call, you will most likely speak with a paralegal (legal assistant) that will take essential information from you about the accident. Some of the things he/she will ask you are:

• Date, time, and location of the accident
• Your recollections of the accident
• Your name, address, insurance carrier, driver's license number
• The make and model of your car, the license plate number
• The damage to your car. Was it towed? If so, by whom?
• Did the police come? Did they take an accident report? If so, do you have a copy?
• The other driver's name, address, telephone number, insurance carrier.
• The other driver's automobile information. Damage?
• Any witnesses? If so, do you have their names, addresses, and telephone numbers? (If not, this information should be on the Police Accident Report)
• Were there other people in your car? If so, who? Were they injured? Were there other people in the other vehicle?
• Was anyone transported by Ambulance? If so, which company?

The paralegal will discuss your case with the Personal Injury Attorney to determine if they can help you. Whether they determine they can help you or not, the paralegal will call you back promptly. If they can help you, they will ask you to come in for an appointment.

If you decide to seek out a lawyer, here's a guide to Personal Injury Lawyers:


Nolo's Lawyer Directory: Find a Personal Injury Lawyer

Your First Meeting With Your Personal Injury Lawyer - What Should You Bring?

It's your first visit with your Personal Injury Lawyer, and you might be a little nervous, but don't be. As a rule, you will meet in private with your attorney and the two of you will discuss your case in depth. He/she might give you an overview of the law firm's past record with cases similar to yours, and give you an idea of the possible outcome of your case and the path it might follow.


After your visit with your attorney, you will be introduced to the two key people with whom you will be working - your Paralegal and your Medical Legal Assistant.

Your Paralegal will oversee your case and will be the person wit whom you interact the most. Your Medical Legal Assistant will be in charge of your medical records. She will immediately begin to send for any medical records and reports already in existence. As these documents arrive at the office, she will review each one and put it in your file.

There are certain documents you should bring to your first appointment so your Paralegal can copy them for your file. Basically, you should bring anything and everything that has any bearing on your accident. Here is a partial list:

• Accident Report - whatever agency responded to your accident should have filled out an Accident Report. This report can have a wealth of information for your attorney and Paralegal. Usually, the report is available 10 to 15 days after your accident. It's a good idea to call the agency involved, get the Case Number, and the approximate date the report will be available. If you are physically unable to get a copy of the report, don't despair. Your Paralegal can obtain a copy.
• Any medical related documents you have accumulated to date, such as appointments, prescription receipts, the ambulance bill, if appropriate, etc. Your Paralegal will also make copies of any medical insurance cards you have.
• If the other driver's insurance adjuster has been calling you, provide your Paralegal with the name and phone number of the adjuster. Your Paralegal will immediately send a letter to the adjuster advising him/her that you are now represented by an attorney. The adjuster will stop calling you.
• Your driver's license, automobile insurance card, and the Declarations Page of your automobile insurance policy. The Declarations Page is very important. Your Paralegal will review your coverage. If you don't have automobile insurance, don't let that stop you from seeking the help of an attorney. There are many ways he can help you.
• The location of your vehicle and any photos you might have of the vehicle and/or accident scene. If there are no photos, and your car is still damaged and available, your Paralegal can send someone to take pictures.

You will be asked to sign a medical release so your Medical Legal Assistant can begin contacting all of your medical providers and accumulating your medical records and bills. She will advise each health care provider that you are working with an attorney. Other releases may also be required, such as an employment release so your Paralegal can verify your loss of earnings after you return to work.

You may be given a log to keep track of your appointments and any mileage associated with these appointments. Any time you visit your attorney's office, or are in the neighborhood, bring in this log and any new documents you have acquired so the Paralegal and Medical Legal Assistant can keep your file up to date.

The Medical Phase of Your Personal Injury Lawsuit

Before your personal injury attorney can settle your case, you must have completed all of your medical treatment and all the reports and records must be received by your Paralegal and Medical Legal Assistant. You will need releases from every healthcare provider in order to show that it is ok for you to return to work, if appropriate. If you missed work, your Paralegal will send for a statement from your employer stating the number of hours you missed from work and your salary, along with a calculation of the amount of money you lost. This all takes time, so be patient. Some healthcare providers respond quickly, others are slow. Here is a partial list of the items you should provide to your Paralegal and Medical Legal Assistant as your treatment progresses:

• A log, or list, with all of your to-and-from mileage for appointments, trips to the pharmacy, or any other trips related to your accident.
• Copies of any medical related documents you may receive, including the little card you get when a new appointment is scheduled for you.
• The receipts for any medical appliances or equipment you need.
• Copies of all prescription receipts showing exactly what you were prescribed, the prescribing doctor, and how much you paid.
• If any healthcare provider refers you to another healthcare provider, give this information to the Medical Legal Assistant right away so she can begin to accumulate your treatment and medical records and reports from the new healthcare provider. Sometime during this period, make a list of any personal or business related items that may have been destroyed in your vehicle and bring this to your Paralegal.

When all the records are in and your file is complete, your Paralegal and attorney will meet and prepare a Demand Letter. This letter will be sent either to the other driver, his/her attorney, or his/her insurance representative. In this letter, your attorney will recap following:

• The facts of the accident
• Your injuries and treatments to date
• Any future treatment you may need
• Your loss of earnings
• If your future earnings have been diminished by the accident, your attorney will calculate what you would have earned if the accident hadn't occurred, and include this amount in the letter
• Other damages as your attorney sees fit, such as Pain and Suffering

The attorney will give the other side a fixed amount of time to respond to the Demand Letter. Oftentimes, the insurance representative or attorney of the other driver will call your attorney with a counter-offer. It is your attorney's responsibility to present this counter-offer to you. Your attorney can advise you on the counter-offer, but the final decision is always yours to make. If no response is received or no acceptable offer to settle is presented, your attorney will discuss the next step with you - filing a lawsuit against the responsible party.

Filing the Summons and Complaint

Your attorney has sent a Demand Letter to the responsible party, his attorney, or his insurance adjuster with no response or acceptable settlement proposal before the time limit to respond ended. Your attorney advises you to have him file a Complaint on your behalf. What exactly does this entail?

The Complaint is a formal document that your attorney will file with the Clerk of the Court to claim your legal rights against the other driver. You will be the Plaintiff and the other driver will be the Defendant.

With the Complaint your attorney must file at least one Cause of Action, usually more, depending on your situation. A Cause of Action spells out the reason you are filing the lawsuit. For example, the Motor Vehicle Cause of Action states, "Plaintiff alleges the acts of defendants were negligent; the acts were the legal (proximate) cause of injuries and damages to plaintiff; the act occurred..." and then the attorney will give the specific facts of the accident. (Judical Council of California form PLD-PI-001(1) Rev. January 1, 2007).

Here is a partial list of the damages the attorney may list on the Complaint:

• Loss of Wages
• Loss of use of property
• Hospital and medical expenses
• General damage
• Property damage
• Loss of earning capacity
• Other damages specific to your case

Your attorney will also prepare a Summons which will be filed with the Complaint. The Clerk of the Court will stamp the documents in, assign a case number, and return the originals to your attorney along with however many copies your attorney needs. A file for your case will be set up at the Courthouse and will contain a copy of every document pertaining to your case.

After your attorney receives the Summons and Complaint back from the Court, he will have someone, usually a process server, serve the documents on the other driver. After service, the process server fills out a Proof of Service of Summons and returns it to your attorney, who must file it with the Clerk of the Court. The Summons advises the Defendant that he/she has 30 calendar days to respond, in writing, to the Court and have a copy of the Answer sered on you, via your attorney.

In the Answer, the Defendant can generally deny each allegation of the Complaint, or deny some of the allegations specifically and admit others, or he can use Affirmative Defenses, such as Assumption of Risk or Contributory Negligence.

After the Answer is served on you, via your attorney, the next phase begins - the Discovery phase. Discovery is exactly what it implies - a chance for both parties to "discover" information about each other. Discovery has many facets, some of which are:

• Form Interrogatories
• Inspection of Documents, Things, and Places
• Requests for Admissions
• Special Interrogatories
• Oral and/or Written Depositions
• Physical and/or Mental Medical Examinations
• Simultaneous Exchanges of Expert Trial Witness Information

The Defendant can serve Discovery on you, via your attorney, immediately. You can serve Discovery on the Defendant ten days after the date they are served.

The Discovery Process

The lawsuit has been filed, the other party has answered, and now, the Discovery process begins. What precisely is Discovery? It's exactly like it sounds - a chance for each side to "discover" information about the other party. There are several forms of Discovery listed below. We will discuss the first four in this article:

• Form Interrogatories
• Special Interrogatories
• Request for Inspection of Documents, Things, and Places
• Requests for Admissions
• Oral and/or Written Depositions
• Physical and/or Mental Medical Examinations
• Simultaneous Exchanges of Expert Trial Witness Information

Normally, the first Discovery your attorney will receive, and send, are Form Interrogatories, Special Interrogatories, and Request for Inspection of Documents, Things, and Places.Sometimes, Requests for Admissions will be sent also.

Form Interrogatories are simply a standard list of pre-printed questions, in several categories, for you to answer. Your attorney will go through the questions and put a check mark next to the ones he wants the other party to answer, and the other party will do the same. The time limit to answer is 30 days. Here is a list of some of the categories of questions on the Form Interrogatories:

• General background information
• Insurance information
• Employment information
• Any mental, emotional, or physical injuries you attribute to the accident
• Property damage
• Loss of income or earning capacity
• Other damages
• Witnesses, statements, photographs
• How the incident occurred

Even though a particular item is checked, your attorney may have grounds to object to their request. Special Interrogatories are simply more questions that weren't on the Form Interrogatories.

Request for Inspection of Documents, Places, and Things is a way for one party to get the other party to provide them with copies of documents or other items in their possession, such as photographs. Sometimes one party may want to inspect something in the other party's possession, such as the vehicle.

Requests for Admissions are a list of statements that you, or the other party, must either admit or deny.

When your attorney receives these items, he will make copies and send them to you with detailed instructions on how to answer. A lot of the information he will already have, but you must answer each item as completely as you can. If you reference any documents in your answers to Interrogatories, you can attach copies and list them as Exhibits in the answers. If the same documents are asked for in the Request for Inspection of Documents, Things, and Places, your attorney will say in those answers that the documents have already been provided. You don't have to provide them twice.

For the Request for Inspection, you must provide any items that your attorney doesn't already have in your file. For example, if you have new medical documents or prescription receipts, or photographs that you have taken of the vehicle, you must provide them. They may ask for a copy of the Police Report, but they can obtain that themselves so your attorney will usually object to that request.

If you have a problem with any of the Discovery, you can make an appointment with your paralegal and he or she will help you complete everything. You must then sign a Verification, which your attorney will prepare, stating, "I declare under penalty of perjury under the laws of the State of California that the foregoing answers are true and correct."

When you have finished, your paralegal will review everything and call you if he or she has any questions or needs any further information. Once your paralegal is satisfied with your responses, he or she will prepare them in the proper format and give them to your attorney to review and sign. The main thing to remember is that each question and request must be answered or complied with to the best of your ability.

Your Personal Injury Lawsuit Deposition

The other party's attorney, or insurance company has sent your attorney a Deposition Notice. They want to take your deposition. What exactly does this mean? A Deposition is a chance for one party to ask the other party questions, under oath, and/or to produce documents or other things.

The Defendant (other party) can send out a Deposition Notice as soon as they file an Answer to your Complaint. They must give you at least 10 days notice and the deposition must be held within 75 miles of your residence if the lawsuit is in the same County where you live, or within 150 miles of your residence if the lawsuit is in another County, and they want to depose you in that County.

A Court Reporter will be transcribing everything that's said during the Deposition and will be the person who administers your oath or affirmation. The Deposition may also be video taped. If the Defendant wants to video tape the Deposition, they must say so in the Deposition Notice. Be aware that everything you say will be the same as if you were saying it in Court. If you answer a question in your Deposition one way, you must answer it the same way in Court.

The Deposition Notice will list any documents or other things that the Defendant requires you to produce at the Deposition. Unless your attorney objects, you must produce these items.

A Deposition is usually held in an attorney's conference room or, sometimes, at the conference room of a hotel. The Defendant can be there with his/her attorney. If your attorney deposes the Defendant, you can go also. In fact, it's important that you go, if for no other reason than to make a positive identification of the Defendant. In one case, an attorney deposed a Defendant and the Plaintiff didn't go with him. When they appeared in Court, the Plaintiff took the attorney aside and said that the Defendant wasn't the person who was driving the car that hit him! The Judge wasn't happy.

One purpose of a Deposition, besides getting the answers to more questions and documents, is to size you up. The Defendant's attorney wants to see what kind of witness you will make in Court. How will you appear to a jury? Can he get you upset or angry and make you appear unstable to the Jury? Do you present a good appearance, or do you have tattoos on your neck and a pierced tongue or nose? It's ok to have tatoos and body piercings, but you want to minimize these things at your Deposition and Trial.

Here are some things to keep in mind for your Deposition:

• Make sure you meet with your attorney before the Deposition to review your case. This is very important.
• Dress neatly. You don't have to wear a business suit, but you must be neat and clean. No t-shirts or tank tops.
• Don't speak unless spoken to.
• Give your attorney a chance to object to the question before you begin your answer. If he or she objects, don't answer the question.
• Listen carefully to the questions and answer exactly what they are asking. Don't elaborate.
• If you need to take a break, or talk to your attorney privately, that's ok.
• Always answer as precisely and truthfully as you can.

After your Deposition, you will have a chance to review the transcript and make any changes, which will be sent to the Defendant's attorney. You will sign the Deposition after you have reviewed it and made any changes.

The Deposition, along with all the other forms of Discovery, becomes a part of your file and if it is necessary to go to Court, these will all become very important parts of your case. So treat each thing you must do seriously, so your answers don't come back to haunt you in Court.

HERE'S A GOOD RESOURCE:

Mediation and Arbitration

There are many scenarios that can take place to settle your case between the time the Complaint is filed and the actual Trial. In fact, a majority of the cases which didn't settle BEFORE the Complaint was filed settle before Trial.

For instance, if the other party (Defendant) is being represented by the attorney for his/her insurance company, the attorney might make an offer to settle when he realizes that your claims are valid and will reach or exceed the defendant's insurance policy limits. Or he might make a settlement offer based on a reasonable amount that satisfies you and your attorney, and you will accept. There are many opportunities for the two attorneys to confer during this period and they know it is to everyone's benefit if they can settle the case before it goes to Trial.

The attorneys will also be meeting with the Judge assigned to the case during this period. They will have to attend a Case Management Conference, Mandatory Settlement Conference, and Final Case Management Conference at the least, before the trial. These conferences keep the Judge apprised as to the status of the case and if someone is dragging his/her feet, the Judge can impose sanctions.

Two methods to bring forth a settlement are Arbitration and Mediation. Both can be very effective and both require your presence.

Mediation is facilitated by a mediator. The Court maintains a list of mediators, usually attorneys or retired judges, or you and the other party can agree on a mediator. During the mediation, the mediator meets with each side separately; the parties are not together.

Here is some information about Mediation:

• The parties to the case agree to have mediation
• Both sides agree on a mediator
• Each party submits a "brief" to the mediator prior to the mediation
• The cost of the mediation is usually split between the two parties
• Both parties have agreed to cooperate in the mediation process and the case is somewhat close to resolution

The mediator functions somewhat like a "hostage negotiator" in the sense that he talks to each side, separately, in an effort to bring about a resolution that both sides can agree to. He or she will go back and forth between the parties, making suggestions, making offers and counter-offers, discussing the pros and cons of the case, until, hopefully, both sides come to an agreement. After an agreement has been reached, the attornies will prepare the necessary settlement documents and the case will be finished.

Arbitration is somewhat different. The parties have agreed on voluntary arbitration in an effort to settle their case. It can be "binding" or "non-binding." If it's binding, the parties have agreed to bide by the decision of the arbitrator. If it's non-binding, and one side doesn't like the decision of the arbitrator, that side can opt to go to trial.

After the arbitrator is decided upon, each party sends the arbitrator an Arbitration Brief, basically outlining their case. At the arbitration, usually held in a conference room, each side presents their case to the arbitrator. The arbitrator then has a certain amount of days in which to render his decision. If his decision is binding, or if it is favorable to both sides, the case is over and the settlement documents are prepared. If it is a non-binding decision and one side disagrees, then the case is headed for trial

Only about 5% of all civil cases go to trial. Usually by the time discovery is finished and all efforts have been made to settle the case have been explored, the case will have settled.