Chapter Selection:

 

yellow-bar

part-4-header

yellow-bar

PART 4 TABLE OF CONTENTS

8. Before Filing A Lawsuit
9. Taking The Case To Trial

yellow-bar

8. BEFORE FILING A LAWSUIT

The first step in a claim that will wend its way through the legal system is, of course, an injury or the death of one or more persons due to the fault of another person or persons. Part V of this book discusses some of the more common causes of personal injury and wrongful death, while Part VI addresses some of the more common injuries encountered.

If your claim involves a public entity (a governmental agency), be it a city, county, the State of California, or the United States, you must act quickly. Claims must be made with the appropriate governmental agency within a certain time limit, usually six months (although, in some cases, it can be considerably less).

The first focus of a claim is ensuring that the injured victim has received or is receiving the proper medical care. An experienced personal injury law firm usually knows which doctors are considered the “tops” in their field and they can refer you to the doctors as appropriate.

As soon as you have retained the law firm or attorney (formally hired a legal firm or individual attorney), they will begin an immediate investigation into the cause(s) of the accident. In an automobile accident case, an investigation may include:

  • Sending an investigator out to the scene of the accident to take
    pictures of the accident site at approximately the same time as the
    accident occurred
  • Taking pictures of the cars before they are repaired to show where
    and how badly the vehicles were damaged
  • Finding witnesses and taking their statements
  • Directing you to a good doctor to evaluate how badly injured you
    are, the type of treatment you will need in the future, etc.

Depending upon the type of accident that you were injured in and the severity of your injuries, various experts may be retained to discover the cause of the accident or to prove the extent and permanence of your injuries. This may involve hiring an accident reconstruction expert, medical doctors, experts in product design and manufacture, psychotherapists, economists, accountants, pain management specialists, etc.

After the initial investigation has been performed, the lawyer will contact the insurance company’s adjuster and begin preliminary settlement talks. Insurance company adjusters keep their jobs by settling cases for as little as possible, so it is typical that the insurance adjuster will blame part or all of the accident on you or argue that you are exaggerating your injuries. As your injuries begin to heal (or if you have suffered paralysis, an amputation, and/or a traumatic brain injury), your attorney will start to calculate the value of your case. As we discussed in Part III (“Workingwith Your Attorney”) of this book, your attorney will put a monetary value on your case based on a number of factors. The other driver’s insurance company should promptly pay the policy limits if your injuries and resulting disability run into the millions of dollars but all the person who hit you has is an insurance policy for $100,000, and there is no question that the other driver was at fault for the accident.

When the insurance policy is sufficient to pay the damages, or your injuries and lost wages clearly exceed the amount of the policy limits, your lawyer may send a “demand letter” demanding that the insurance company pay the full amount to settle the case and avoid an expensive trial that it is likely to lose. On the insurance company’s part, the insurance adjuster may send your lawyer a letter offering to settle the case for a certain amount that is considerably less than the insurance limits. If the two figures are in the same ballpark, further settlement negotiations with the insurance company or their lawyer may prove fruitful. If, however, the two sides have drastically different views on the value of the case, then it will be necessary to resort to the legal system. Over 95 percent of all personal injury and wrongful death cases settle without going to trial—sometimes on the courthouse steps the day the trial is to begin. Also, many cases are settled at mediation or arbitration.

yellow-bar

9. TAKING THE CASE TO TRIAL

If you are unable to reach a reasonable settlement with the insurance company, your lawyer will file a “Complaint for Damages” against the party or parties who injured you. The person who hurt you (or her insurance company) will then have to file a formal response (called the “Answer”) to the Complaint within a certain time, usually 30 days. If the defendant fails to file an Answer within 30 days, and your lawyer has not granted the defendant an extension of time in which to file, your lawyer may file for a Default Judgment.

After the Complaint and Answer have been filed, the fact-finding part of the lawsuit begins. This is formally known as “discovery.” Usually the first step in discovery is sending specific questions (“Written Interrogatories”) to the other party (the “defendant”). The defendant must answer the interrogatories under penalty of perjury. After interrogatories have been served and answered, your lawyer will want to take the deposition of the other party. Likewise, the lawyer for the defendant will usually want to take your deposition. A deposition is a formal examination of one party by the other party’s attorney.

If you are being deposed, the deposition will most likely take place in the other party’s lawyer’s office. A court reporter will swear you in just like in “real” court and will take down everything that is said during the deposition (except where the attorneys speak off the record). During the discovery process, the lawyers will also want to take the depositions of any expert witnesses the other lawyer plans on calling at trial, such as an accident reconstructionist or medical expert.

With input from the attorneys for both sides, the judge will set a trial date. Before the date for the trial arrives, the judge will hold a pre-trial settlement conference with the parties and their attorneys in an effort to reach an agreeable settlement. If the parties are unable to agree to settle the case for a certain amount, the case will proceed to trial. It is not all that unusual for the parties to settle the case on the courthouse steps on the morning that the trial is set to begin.

At the trial, you, the injured victim, are referred to as the “plaintiff.” As already noted, the person who hurt you is referred to as the “defendant.” As the plaintiff seeking compensation from the defendant, you have the burden of proving your case. You are required to prove to a “preponderance of the evidence” that your injuries and damages were caused by the defendant. Preponderance of the evidence means that you must prove that it is more likely than not that you were injured and that the defendant caused your injuries. All you need to do is tip the scales of justice in your favor ever so slightly. Thus, if you can prove that the defendant’s wrongful act was 51 percent or greater, you will win the case. Contrast this standard of proof with the criminal standard of proof, in which the District Attorney must prove “beyond a reasonable doubt” that the accused committed the crime. The civil standard of “more likely than not” is considerably lower than the criminal “reasonable doubt” test.

Before the trial begins, a jury must be selected. (In some personal injury and wrongful death cases, the parties will want to have the case heard and decided by the judge rather than a jury, but this is relatively rare in personal injury cases.) A group (“pool”) of potential jurors will be brought to the courtroom. It used to be that 12 jurors heard a civil case and had to bring back a unanimous verdict. Now, in California, only nine of the 12 jurors must agree with the verdict for the plaintiff to prevail.

Some judges prefer to do the bulk of the questioning themselves of each juror to decide whether the potential juror can be fair and impartial in making a decision in the case. Other judges let the lawyers do most of the questioning.

After the jury has been selected and sworn in (“empanelled”), the plaintiff presents his “case-in-chief.” Before the trial testimony begins, the judge may briefly tell the jury what the case is all about. The plaintiff’s attorney starts the trial with an opening statement. Opening statements are designed for the lawyers to state what facts they intend to prove to the jury. The attorneys may not argue any aspect of the case during opening statements. Arguments such as what the facts prove or the credibility of a witness are saved for the end of trial. After the plaintiff’s attorney has made an opening statement, the defendant’s attorney may wish to make an opening statement for the defense, or he may wait until the plaintiff’s casein-chief is rested.

In the typical personal injury case, the plaintiff testifies under oath as to the facts leading up to and causing the accident, his physical injuries, property damage, pain and suffering, past and future medical expenses, loss of enjoyment of life, etc. The plaintiff’s attorney will present the testimony of experts in their various fields—e.g., accident reconstructionists, medical doctors, economists, accountants, and pain management specialists—to prove how the accident happened and why the defendant was as fault, the injuries and surgeries the plaintiff has had and any future surgeries the plaintiff may need to undergo, and how his medical injuries will impact the rest of his life. He will also introduce the testimony of forensic accountants to prove how much loss the plaintiff has had and will have in the future due to a diminished ability to work (or complete disability), and the costs of medical care the plaintiff will need in the future. At the end of each witness’s testimony, the defendant has the right to cross-examine the witness and try to discredit or poke holes in the witness’s testimony.

Once the plaintiff has finished presenting his case-in-chief, the defendant has the right to present her side of the case. At the close of the plaintiff’s case-in-chief, the defendant’s lawyer may ask the judge to enter a “nonsuit” against the plaintiff, based on the argument that the plaintiff failed to prove all of the elements of his case or failed to prove that the defendant was in any way responsible for the plaintiff’s harm. If the judge grants the defendant’s Motion for Nonsuit, the trial is over the defendant being declared the winner.

If the trial judge denies the Motion for Nonsuit, the defendant presents her side of the case. The defendant may take the witness stand herself, present an accident reconstruction expert witness to contradict the plaintiff’s expert’s testimony, as well as putting on the stand expert physicians, accountants, and other witnesses in an attempt to prove that the plaintiff’s damages are nowhere near what he is asking the jury to award. After the defense counsel rests the defendant’s case, the plaintiff has the right to call any witnesses to dispute (“rebut”) any or all of the defendant’s witnesses.

After both sides have rested their respective cases, and all rebuttal witnesses have been called and testified, the judge instructs the jury as to what law(s) to apply. (Before the trial even began, the lawyers for the plaintiff and the defendant will have submitted the jury instructions they would like the judge to read to the jury at the end of the case).

After the judge has read all of the jury instructions to the jury, the jury retires to the jury room for deliberations of the merits of the case. The first order of business for the jury is selecting the foreperson, who will be in charge of keeping the deliberations civil. In many cases, after the foreperson has been selected, the jury will immediately take a vote by private ballot to see how close they are to getting a consensus. Lawyers used to believe that if the jury reached a verdict quickly it was in favor of the defense, while longer deliberations benefited the plaintiff. However, that is just an old wife’s tale and nothing can be read into how long it takes for the jury to reach its verdict.

As noted above, in civil cases, a unanimous verdict is not required; only nine jurors out of the 12 need agree for the plaintiff to win. With the exception of plaintiffs in Small Claims Court actions, if you disagree with the verdict or with any of the judge’s rulings during the trial, you have the right to appeal it to an intermediate court the District Court of Appeal (DCA) for your area. A panel of a DCA consists of three judges, whose review is limited to facts and exhibits entered into evidence at your trial. If it applies, the DCA will also decide whether a trial judge’s decision was wrong regarding not allowing you to present helpful evidence to your case to the jury. The appellate judges read all of the transcripts relating to
the trial, whether the testimony was made in open court in front of the jury or in the judge’s private chambers with just the judge, lawyers, and court reporter present. The court will not consider any testimony or evidence that you or your attorney forgot to bring up at trial. However, if there is newly discovered evidence since the trial, the DCA may consider it or, if it is important, the DCA may send the case back to the lower court for a retrial in light of the newly discovered evidence.

The DCA also reviews the law applied in the case, to make sure the trial judge did not make an erroneous decision based on a misinterpretation of the law or gave an instruction to the jury that misstated the law. If the trial judge’s error is considered harmless—i.e., it didn’t affect the outcome of the case—the DCA deems such error harmless and affirms the verdict. If, however, the error was “prejudicial,” that is, it prevented either side from getting a fair trial, the DCA will call the mistake prejudicial and send the case back (“remand”) to the trial judge for a new trial or other separative action.

If either party is dissatisfied with the DCA’s decision, they may try to appeal the case to the California Supreme Court. Unlike DCAs, which must consider and rule on every case appealed to them, the California Supreme Court only takes those cases it wishes to hear.

yellow-bar

go-back-part-31continue-to-part-51
awards