THINGS TO THINK ABOUT WHEN YOU HAVE BEEN INJURED IN AN ACCIDENT

            This article addresses things that you might want to think about if you have been injured in an accident and seek compensation for your injuries.  It represents a sort of “primer” for you.   The article does not address all possible issues, and should not be relied upon in deciding if and when to bring a claim.  It nevertheless gives the personal injury claimant a basic idea of the “lay of the land” in the personal injury claims process.

Immediate Needs

            People who have been injured in an accident will have immediate needs: finding medical care, figuring out how to pay for it, handling the disposition of a damaged vehicle, obtaining leave from a job, protecting their income, taking care of children and other family matters.  A good attorney can often provide suggestions or advice on how to handle these problems. 

A reoccurring issue is how to pay for medical care.  This becomes a particularly pressing question when an injured person is without medical insurance.  Surprisingly enough, sometimes even persons with medical insurance are denied coverage when an insurer or medical care provider finds out the claim arises out of a “third-party” accident situations.   There are a number of ways of handling these problems.  Not infrequently, an injured person’s own insurance may provide “med-pay coverage,” which provides for medical benefits up to a certain amount (e.g., $5000), for injuries or conditions arising out of automobile accidents.  Alternately, doctors and health care providers sometimes will work on a lien-basis when an injured person is without medical insurance or substantial assets.  In other words, such providers will wait for payment until the injured person makes a recovery from a third-party who has caused his or her injury.  A related service provided by such providers is reduced fee service for persons without medical insurance or substantial assets.  Government assistance is also sometimes available to cover the cost of medical care.  Consult with your attorney about these and other options.

Another immediate concern is what to do with a damaged vehicle: how to pay for its  tow, where to have it stored, how to pay for storage, whether to salvage the vehicle, and what is fair compensation for its damage. These questions can often be particularly troublesome in the immediate aftermath of a serious accident, where neither the injured person or his or her family are emotionally and sometimes physically able to deal with them.  Your attorney should be able to help you with these problems.  The primary issue often revolves around the value of the vehicle both before and after the accident, and what the insurer of the person who hit you might be willing to pay for the loss.  Generally speaking, a person whose vehicle has been damaged in an accident may recover the lesser of the cost of repair to the vehicle, or the diminution in the value of the vehicle caused by the accident.  Many people cannot understand or accept this principle, and this writer understands why.  What if you have an old Volvo that is the most reliable car you have ever had,  but it’s only worth $2000 on the market?  What if that same old Volvo is damaged and the repair cost is $5000?  The most the insurer will pay for the vehicle is $2000 less its salvage value (think $250 or so for salvage value).  It may be difficult if not impossible to find a replacement vehicle for $1750 that is reliable as your old Volvo.  Here as elsewhere the law is not perfect.  A good attorney should be able to help you maximize compensation for your property damage.

Securing replacement income is another serious problem for persons disabled in accidents (if only temporarily).  If they are fortunate enough to be an employee somewhere, they may have private disability insurance or state disability insurance which will provide some cushion for the income loss associated with personal injury.  If a person does not have disability insurance, finding replacement income is more difficult.  If someone is self-employed, the disabled person may hire someone to fill in for him or her, paying the replacement less than the disabled person normally charges, and recovering the difference.  If disability persists, making a claim for disability benefits under the Social Security system may make sense (typically requiring a waiting period of five or more months).

Again, a good personal injury attorney will help you address these various issues.

.Why Bother with an Attorney?

            An injured person might ask himself or herself whether an attorney is really needed to handle a personal injury claim.  The short answer to this question is that the person that hit you will have an attorney, including the seemingly nice insurance adjusters that want you to take $1500 to walk away from a claim worth 50 times that amount.  The longer answer is that there are many facets of the personal injury claims and litigation process that are not self-evident, and that a good attorney will help you navigate to your benefit.  I would hope that this article explains why this is so.  I like to tell people that having a good attorney levels the playing field.

            Sometimes people have reservations about making personal injury claims.  It is against their religion, or personal philosophy, for example.  I tell people that there is nothing to be ashamed about in protecting their health.  If Microsoft, Standard Oil, and countless other corporations can spend millions of dollars to protect their corporate assets, then there is nothing wrong about people protecting their health, the most precious of all our assets.

Oh, and Don’t Talk to the Defendant’s Insurance Company

            Another thing to do – or not to do – is to give statements to the insurance company of the person that hit you.  The company is not your friend.  Let your attorney control the flow of information to the other side.  He can explain why this benefits you.  Remember, the insurance company of the person that hit you is not your friend.

Preserving Your Claim

It is important to preserve evidence relating to your accident: pictures of your damaged vehicle, the scene of the accident, or your injury; the actual product that has injured you; names and addresses of persons who witnessed the accident.  An attorney can help you with this evidence collection and preservation.  Law enforcement personnel will typically give persons involved in an accident a accident report number, before the actual accident report has been prepared.  It is important to retain this number, and to follow-up with the law enforcement agency in question to obtain a copy of the actual police report once it is completed.  If you are incapacitated, have your attorney or someone else obtain a copy of the accident report.  Do not be surprised if the report is not entirely accurate.  There may be steps that you can take to remedy this situation.  Consult your attorney about the options.

Pictures are also important to memorialize what has occurred: pictures of vehicles, pictures of the accident scene, pictures of your injuries, pictures of people, animals or things involved in your injury.  If you have not taken such pictures, make sure your attorney, his investigator, or someone else does this for you. 

There may be other documents that are essential in your case: police reports, repair estimates, statements, notes made at the scene of the accident, or any number of other items.  Consult with your attorney about the possibilities in this regard. 

Sometimes it is important to preserve the “instrumentality of injury,” in its un-repaired state for subsequent litigation.  When I use the expression “instrumentality of injury,” I mean anything that caused or been involved in your injury: vehicles, products, helmets, medicine, food, or whatever.  Ask your attorney if your have any doubt, and always error on the side of preservation.

Witnesses must also be secured: both identifying who they are, and obtaining their names, addresses, and telephone numbers.  If you have a written or recorded statement from a witness, all the better.  An attorney or investigator can help you find witnesses you may not have considered.  Witnesses most often make or break a case – turning a he-said, she-said credibility contest into something more in your favor -  so it is very important that adequate attention be given to this question.  Determining whether the witnesses have short or medium terms plans to leave the area is also a good idea.

One must also keep an eye on time-limits for bringing suit.  This is typically two years from the date of the accident for personal injury claims, at least in California, but there are exceptions.  Defamation and wrongful imprisonment cases may be one year from the date of the wrongful act.  If there is a government entity involved, you must lodge a government claim within six months of the accident.  This short treatment of time limits for bringing suit is provided for general informational purposes but is not meant to be relied upon, and a personal injury claimant must always consult with his or her own attorney. 

.Potential Defendants and Sources of Payment

            This is an area that is not always self-evident: who might have contributed to your injury and so be liable.  For example, in an automobile accident not only the driver, but the owner of the vehicle, the person who entrusted the vehicle, the employer of the person that drove the vehicle, the partner of the person who drove the vehicle, and others might be liable for the negligent act of the driver.   In the case of a slip and fall, persons liable may include the operator of the premises, the lesser of the premises, the property management company, as well as the owner. 

            Another consideration for personal injury claimants is alternate sources of payment.  Uninsured or underinsured insurance coverage is often available to pay compensation where the person who caused the accident does not have insurance, or does not have adequate insurance to cover damages he or she may have caused.  The availability of uninsured and underinsured motorist coverage is normally easy to determine by examining the coverage card that one receives from his or her insurance company.  Uninsured and underinsured coverage represents an excellent alternate source of compensation in many instances, insuring full compensation to an injured claimant.  There are, moreover, advantages to proceeding under such insurance claims, as the insurance company owes duties of good faith and fair dealing to the injured person that the parties who injured that person (or their insurance company), do not owe.

These are just a few examples of situations where there are many potential defendants or sources of payment for a personal injury claimant.  A good attorney should be able to determine the full range of potential defendants and sources of payment.  This in turn increases the likelihood that an injured person will receive full compensation.

Potential Claims

            In most personal injury litigation, the central claim is negligence: that the person who caused the accident did not exercise reasonable care under the circumstances to avoid injury to the injured party.  This time-honored claim may seem to many people exceedingly ambiguous.  What does it mean “reasonable care?”  What is the standard?  One person’s “reasonable care” is another person’s “unreasonable care.”  How is the question decided?  The short answer to all these questions is this is what juries do: they decide whether the person who caused the accident exercised or failed to exercise reasonable care under the circumstances.  They look at all the circumstances: whether the defendant ran a red light or violated some law causing the accident, the defendant’s speed, whether the defendant was driving too vast for driving conditions, and numerous other factors. 

             Other claims that may be brought in personal injury litigation typically involve some variation on the negligence theory.  For example, the liability of owners of automobiles driven by someone else, or the liability of the employer of a person causing injury, still involve the question of whether the driver or employee was negligent.  This type of liability is called “vicarious liability” because liability is imposed on individuals or companies who did not actually cause the injury, but the law holds liable anyway as a matter of public policy.  Similarly in products liability cases, the analysis is whether a product is unreasonably dangerous given its intended use: again a sort of negligence or reasonable man standard.  Likewise, in trip and fall and other cases involving the dangerous conditions of real property, the question is whether there was an unreasonably dangerous condition on the property and whether the owner knew or should have known of its existence, the analysis again coming down to whether the owner exercised reasonable care, all things considered.

There are more unusual sorts of claims applicable to special situations.  In dog bite cases, for example, there is a statute or a written law that basically states that the owner of the dog is strictly liable for injuries caused by the dog.  There are, at least in California, no “free bites.”  Defamation and false imprisonment are other unique sorts of claims covering special circumstances: defamation relating to the publication of false statements about individuals, and false imprisonment relating to the imprisonment of someone without proper authority.  These have there own particular elements and showings, which an attorney can discuss with you where appropriate.

A Description of the Litigation Process

            Typically, there is a pre-lawsuit phase of the personal injury claims process, where the injured individual is trying to get well, and to get back on his or her feet.  As discussed above, this period can be difficult both for the individual and his family: finding and paying for medical care, securing replacement income, protecting one’s job, resolving a claim for damage to one’s vehicle, and other matters.  A good attorney should be able to assist in this difficult transition period. 

In the second part of the pre-lawsuit period, the person’s injuries typically have stabilized or reached a point of being “permanent and stationary.”  It is at this time that an assessment of the extent of one’s damages may be made, since the amount of medical expenses, wage loss, and pain and suffering usually are ascertainable.  It is for the same reason that a claim for settlement on the insurance company of the person who caused the injury may be made with a reasonable  degree of certainty.  This is not always the case, however, as some injuries may be serious and take a number of years to fully manifest.  This can be particularly true in brain injury cases and cases involving minors.  Nevertheless, in most cases a demand can be made on an insurance company before the two years has run that one has to file a personal injury lawsuit in California.   (Some exceptions to this two year period apply, so beware!).

            Once the pre-lawsuit stage of the claims process comes to an end, a complaint is filed in the Superior Court of the county in which the accident has occurred, or one of the defendants live.  The defendant has 30 days to answer the complaint once it has been served on him or her.  From that point, the parties usually engage in the “discovery process,” including answering written questions, providing documents, and making themselves and other witnesses available for depositions.  Depositions are statements taken under oath, where a court reporter transcribes a person’s testimony.  The discovery process in the typical personal injury case lasts six months or so. 

After discovery is completed, a form of “alternative dispute resolution” or “ADR” is usually employed in an attempt to settle cases.  Very often courts order ADR,  which can include judicial arbitration, mediation, or settlement conferences before a judge or court referee.  These ADR processes generally are not binding on the parties, and they can walk away from them if they are not satisfied with the results or what is being offered. 

If ADR is unsuccessful, the case is set for trial.  Most courts have a goal of getting cases out to trial within one year of their filing.  This is very often just a “goal,” but normal personal injury cases generally see at least their first trial setting within one year.   The case can be set for trial multiple times before it actually “gets out” with a courtroom assigned to it.  The exact procedures and protocols for trial setting vary somewhat from county to county, but this is something your attorney can discuss with you.

            From time to time, a personal injury lawsuit can be filed in federal court, where either the plaintiff and the defendant are from different states, or there is a federal question involved in the case.  Typically the life span of a federal case is somewhat longer than a state case, but there is substantial variety in all of this which you may discuss with your attorney.

A trial, should your claim come to this, is a process whereby either a judge (if the jury is waived), or a jury of people from around the area in which the court is situated, decide your case.  A trial can last from one day to many weeks or even months.  It requires a substantial expenditure of time and money.  Normally your appearance will be required or advisable at some of all of the trial.  A person in the litigation claims process  should consider this in making decisions along the way.   There is a substantial amount of uncertainty in the trial process.  It is very difficult if not impossible to say with certainty what a judge or a jury will do with a case.  Where it may be highly likely that a particular fact or outcome will be decided one way or the other, juries and even judges often surprise parties in litigation.

Once a verdict is returned, a winning party will have a judgment in his or her favor.  The prevailing party may also seek costs from the losing party.  These can sometimes be substantial.  This should be considered in litigation decisions along the way.

            After a judgment is entered, either side may appeal.  Generally, reviewing courts will construe the evidence and procedures at trial in such a way as to uphold a trial court determination.  Reversals can occur, however, where a “miscarriage of justice” or prejudicial legal error can be shown.  An appeal normally takes about one year to run its course.  Trial attorneys generally do not agree to represent a client on appeal, absent an agreement specifically covering that phase of the legal process.

Things to Think About Before Bringing Suit

            With some limited exceptions, a lawsuit is a public act.  Complaints and other papers that are filed in a case are public records.  Trials and hearings are public events.  Anyone who is interested can drop in and see what’s going on.  Persons who bring lawsuits for personal injury, or wrongful termination, or other such claims, are required to answer questions about many personal matters: e.g., their medical history, their earnings history (if making a claim for personal injury), and similar matters.  There are, of course, limits to questions that can be asked, but one must keep in mind that bringing a lawsuit is, in a certain sense, consenting to be asked questions and to provide information that one would not otherwise have to divulge, and sometimes to do it in a public forum.  A good attorney can limit the disclosures and embarrassment that a lawsuit may entail, and will be prepared to discuss this with you.

Attorney-Client Agreements

            Personal injury claims and many other types of claims brought against wrongdoers are typically handled on a contingency fee basis: i.e., the attorney takes his or her fee out of the client’s final recovery.  Sometimes there can be a mixed fee, where a client pays part of the fee out of his or her pocket, and part out of the recovery.  Most or many times, the attorney will agree to advance costs.  Other times, the client will pay some or all of the costs.

What it All Means

            We are very fortunate in the United States, and in California in particular, to have ready access to the courts.  Here, juries of average citizens decide disputes, and not a judge appointed by a particular political party, or an arbitrator paid for many times over by a large insurance company.  Many people believe that the United States has the finest legal system in the world.  I am one of those people.  There are very few other places where the average citizen can sue the most powerful companies and people around, including even the United States government, and win if the cause is just.  This is one of the truly great things about this country, and something very much worth preserving.

            Why is this significant in this article about personal injury claims?  It is because claimants in this country and in this State have an opportunity to protect one of the most precious, if not the most precious of our natural gifts: our health.  There is nothing to apologize about in doing so.  There is nothing less valuable about our health than the countless other things that are the continual subject of lawsuits costing millions of dollars without question or criticism: from the name of a company, to intellectual property such as software, to a reputation, to a piece of real property, to any and everything else under the sun .

So, the bottom line, is know what you are getting into in bringing a personal injury claim.  Go into the process with your eyes open.  Find a good attorney.  Make no apologies.  Fight the good fight, and win!

Matthew J. Witteman, 2009 Copyright