Law Offices of Galen Gentry

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What Really Happens In An Injury Lawsuit?

Medical malpractice and accident injury claims are about money. Our system of justice attempts to quantify the value of the injuries. Whether this is an ideal system is a philosophical argument beyond the scope of this article. The fact is that injury cases are about ascribing a value to suffering and determining the degree of responsibility of the defendant.

Some cases are resolved informally through settlement negotiations and some cases go to trial (or private trial proceedings called arbitrations).  Lawsuits take a long time.  On average, a year passes between the beginning of the process and the resolution.  This article explains what happens when you file a lawsuit.

The victim seeks a finding that the defendant bears some legal responsibility for her injuries. And she seeks a determination  of the amount of money which will be fair compensation for the injuries suffered.

What Must the Victim Prove?

The victim must prove that the individual or company that she sued owed a legal duty of care to her, and failed to fulfill that legal duty. Either they did something they shouldn’t have or failed to do something they were obliged to do which caused the victim’s damages.

A classic example of a failure to do what is required is the “rear ender.”  Inattentiveness is usually the cause of rear end accidents.  It makes sense that the defendant owes a duty to all other drivers on the road to be attentive and pay enough attention that he doesn’t run into the car in front of him.  After the victim shows the defendant breached a duty, the victim must prove her damages.

What are Damages?

1. Pain and Suffering: One element of an injury claim is the right to compensation for physical pain and mental anguish you have suffered and will endure in the future because of your injury. These damages are called general damages or non-economic damages.

2. Medical Bills for Injury Treatment: You are entitled to compensation for all the medical bills incurred in the treatment of your injuries, as well as the cost of any medically necessary treatment you will undergo in the future for the injuries.

3. Loss of Earnings: You are also entitled to recover any loss of earnings resulting from your injuries. Lost wages, commissions, bonuses and all other earnings and fringe benefits are recoverable.

4. Loss of Future Earnings: If your injuries permanently limit your ability to earn, you can recover the value of the reduction in future earning capacity.

5. Damages for “wrongful death” are available for the wife, husband, parent and child of a deceased person. Sometimes, persons related by blood or marriage, who were dependent upon the deceased, may recover. Damages are not limited to economic loss and may include damages for mental anguish, emotional pain and suffering.

6. Disfigurement: If the injury causes scarring or other unsightly marks, you are entitled to recover for suffering or embarrassment associated with the disfigurement.

7. Damage to the Marital Relationship: Serious injuries to one spouse may cause damage to the marital relationship. If this occurs, you are entitled to recover for the loss of society, affection, assistance, conjugal fellowship and loss or impairment of sexual relations that occurs.

8. Damage to Personal Property (such as your vehicle): You are entitled to be made whole for any damage to your personal property. If you are involved in an auto accident and your vehicle can be repaired, you are entitled to recover the reasonable cost of restoring the vehicle to its condition before the collision. If the vehicle was destroyed you are entitled to its replacement cost. In addition, you may recover the cost of substitute transportation incurred while your vehicle is being repaired.

Where and How Are Personal Injury Lawsuits Filed and What Happens After They Are Filed?

Personal injury lawsuits usually fall under jurisdiction of state courts in the county where the injury occurred.  (An exception to the rule of state court jurisdiction arises when parties in a personal injury case live in different states, and the case involves an amount in controversy over $75,000.00. This type of case may be filed in the federal trial courts. )

The victim’s lawyer prepares a complaint which explains the allegations and files it with the appropriate court. The attorney receives a summons from the court which is a paper that commands the defendant to appear and respond. The attorney serves copies of the complaint and the summons and a list of the damages on the defendant or defendants. After filing the defendant has 30 days to file an answer. If the defendant does not answer the plaintiff can seek an entry of default and ultimately a default judgment against the defendant.

If the defendant files an answer lawyers for the parties begin the process of legal discovery. Both sides ask written questions called interrogatories to elicit the facts supporting the parties’ respective positions on what happened, who is at fault and what is the measure of the damages.

The defendant’s lawyers will subpoena copies of the records of the medical treatment and bills and review them to determine if they are reasonable. Often the defendant’s counsel hires a physician to examine the plaintiff to make a determination of the nature of the injuries and give an opinion as to whether the amount and type of treatment was reasonable. The lawyers may employ accident reconstructionists to help determine how the events at issue unfolded. Another important discovery tool is the deposition. The attorneys for both sides will ask questions of the parties and any witnesses under oath. The questions and answers are transcribed and can be used in the trial. Our firm generally videotapes depositions of the parties and some fact witnesses.

What Happens at Trial?

The jury examines the evidence to decide whether the defendant should be held legally responsible for the injuries of the plaintiff. After the plaintiff has an opportunity to present his or her case, the defendant has a chance to refute the plaintiff’s case, and to offer his or her own evidence related to the dispute at issue. Sometimes, in personal injury cases the defendant admits liability but disputes the nature or the extent of the plaintiff’s injuries and the necessity of some or all of the plaintiff’s treatment. After both sides have presented their arguments, the jury considers whether to find the defendant liable for the plaintiff’s injuries, and if so, determines the amount of money damages a defendant must pay.

Can the Case Resolve Before a Trial Verdict?

The majority of legal claims arising from accidents do not go to trial–most are resolved earlier through a negotiated settlement. Some cases are settled before a lawsuit is filed. To settle a case a victim must give up the right to pursue any further claims against the party with whom he or she is settling in exchange for the payment of a sum of money by the party or the party’s insurance company.

How Long Does a Case Take?

That depends. California’s rising population and the lack of funding in the state budget for the court system means cases often take at least a year from the date of filing the complaint to get to trial–sometimes quite a bit longer. Recently, the California state courts began to close one Wednesday each month due to the state budget crisis. Delays in case resolution will continue to mount over the next few years. The Presiding Judge of the Los Angeles County Superior Court stated in November of 2009 that he expects that by 2012 it will take the average case four years from the date of filing the complaint to get to trial.  As stated above injury cases usually resolve in about a year.

How Much Compensation Will a Victim Receive?

Your attorney should be able to give you an estimate of your case value once your medical treatment has stabilized and medical bills are available. Each case is unique. There is no simple calculus such a medical bills multiplied by five. The facts and circumstances of each case and the degree of skill with which the case is handled by the attorney determine the amount of compensation.

Most defendants are respresented by lawyers hired by their insurance companies.  Click here to read the article “Six Inside Secrets Insurance Companies Don’t Want You To Know” While it is true that most cases settle before trial, a good settlement for the victim results when the victim’s lawyer prepares the case as if it will go to trial .  Lawyers who focus on settlement, are not as effective.

How Can The Victim Win Her Lawsuit?

To win it is essential that a lawyer develop and convey a simple, plausible theme to the jury. The lawyer then has to explain the law applicable to the dispute in an interesting manner. The lawyer must use the evidence to show the jury why the defendants should be held liable in light of the law, educate the jury on the nature of injuries, and help the jury quantify the damages. Sounds simple, but it is not.

Effective lawyers uses audio and visual aids to aid in the presentation of the evidence of liability and damages at trial. We live in an era when juries expect audio/visual aids. Snippets of deposition transcripts, computer generated images of injuries and accidents help the jury see and understand the issues. Boring recitations of the facts and monotone questions are not the best way to present the case.

Studies have shown that juries respond much more favorably to the side that uses visual evidence. Accident reconstructions, videos showing the pain and hardship the victim has endured due to the injury, and event timelines all have their place in an a good presentation.

If you have questions about injury cases, call us at 800 486-6814.  We are happy to answer your questions and we offer free consultations. Want to know how we’re different from other lawyers and why you should select our firm? Click here.