Personal Injury Law 101
What Every Non-Lawyer Needs to Know
By Ian Zimmerman, Esq.
Just like water is made up of hydrogen and oxygen and salt is composed of sodium and chlorine a Personal Injury Case is composed of three elements:
1- Liability
2-Damages
3-Insurance
A pure Personal Injury Case has perfect liability (there is no question of fault nor any comparative fault), severe damages (serious injuries) and good insurance backing up the claim (deep pockets).
A case which has serious damages but little or no fault or insurance to pay is not a good case.
A Personal Injury Case also has a predictable life cycle. Almost all cases follow the same pattern. Some will mature sooner. The sequence is almost always the same. You start to see this pattern after 30 years of handling cases.
Beginning Stage
The beginning stage is shortly after the injury itself. The client may still be receiving medical treatment or may be finished. The insurance company for the other side (soon to be called Defendant) needs to be notified and this is the time most people call for an attorney. The attorney is responsible for all communication from this point forward with both the other side’s insurance company, as well as your own insurance company. Medical records and other reports are obtained by your attorney from your doctor(s) as well as other documentary evidence to substantiate your losses. For example, wage loss statements from your employer, time off attendance sheets, out of pocket expenses (rental car costs, medications, medical supplies, taxi receipts, etc.).
Middle Stage
The middle stage usually comes begins when you have stopped treating and you are back to normal or back to whatever condition you can be returned to. This is called various things but one of the more commonly used expressions is “Permanent and Stationary,” which means simply that your condition has stabilized and you are not likely to get much better or worse. For purposes of settlement, your case has reached a state where the insurance should now be able to objectively determine your losses (with our help).
At this stage a “Settlement Demand” is sent to the other side’s insurance company which essentially outlines what your case is all about, including 1) how you got hurt 2) how badly you have been hurt 3) your medical records and bills 4) other records and bills and 5) a demand for damages to settle your case.
If the matter can be settled at this middle stage it should be. But not all cases can be so easily settled. At this middle stage there is still no attorney examining the case for the other side. All the work is being done by trained insurance adjusters. This stage is prior to the formal filing of a legal Summons and Complaint. A settlement will usually happen at this stage if your injuries are not too serious and there is little debate over who is at fault.
When a case cannot be settled informally as stated above, a formal Summons and Complaint must be prepared by the lawyer and filed in the Courthouse. This step, i.e., the filing of official documents (not just letters) starts the Litigation phase of a case. In short order the Summons and Complaint must be personally served on the individual defendant and then he/she notifies the insurance company (usually in a mild state of panic) that they have been “served” by a process server. From that point forward the insurance company will turn the case over to their own legal department (in house or not) and that lawyer will contact us and see once again if the case can be settled without further legal wrangling.
If the matter cannot be amicably settled shortly after the filing and serving of a Summons and Complaint full blown litigation results with Discovery undertaken in earnest, (depositions, hearings, interrogatories, document production, subpoenas, etc.). This process is often antagonistic, stressful, combative and can be nasty and harassing. This is how it is often experienced by most clients. We do our best to shield our clients as much as possible from the rigors of litigation – but it is often grueling. No one I ever met enjoyed it.
The litigation stage can easily take a year or more to resolve and exhaust itself (many depositions, hearings, subpoenas) but when it comes to an end, both sides usually then have a very good idea of the relative strengths and weaknesses of each other’s case. Good cases can get better or worse. Like everything else that grows and evolves, it all depends. Are the witnesses that have been deposed good witnesses? Has the story gotten twisted? Is there consistency or inconsistency? Is the physical evidence consistent with testimony? Does the insurance company fear that they may get hit for a large jury verdict unless they settle? Do they think they can “defense” the case and walk away unscathed?
At this stage (near end) the Judge will often schedule one or more Settlement Conferences or recommend that the parties go before a professional Arbitrator or Mediator. These are substitutes for trial and can, in the right circumstances, be beneficial. Again, it all depends and each case must be examined and evaluated individually. After many thousands of cases- NO TWO CASES ARE THE SAME.
End Stage
If the case cannot settle – even after one or more Settlement Conference s- or after Arbitration or Mediation – there is no choice but for the case to go to trial. While negotiations can always take place – around the clock in many instances – a trial will be set if the parties fail to reach an agreement. Trial can be a good or bad thing depending again on the very specific facts and circumstances of your individual case. MOST LAWYERS HAVE NEVER TRIED A CASE. WE HAVE TRIED MANY CASES. Which means that if your case needs to go to trial, so be it. We are prepared to do what is required to ensure that your case receives our full and on-going attention until concluded.
By Ian Zimmerman, Esq