What to Expect in a Personal Injury Claim
Most car crashes and other personal injury claims settle out of court. However, most of them also go through the court process. Knowing what to expect in this process helps people like you make better decisions for themselves and their families.
Pre-LitigationIf liability and damages are relatively clear, many vehicle collisions and other personal injury cases settle almost immediately. However, there are almost always some questions in one or both of these areas.
In a car crash, which is the most common type of personal injury, there’s a difference between fault and liability. Fault is an initial determination based solely on the evidence that’s immediately available at the scene. Liability is a final determination that includes not only that evidence, but also all other evidence as well as applicable legal doctrines.
First, let’s talk about hidden evidence in car crash claims. Did you know your car has a black box data recorder? The Event Data Recorder gives Los Angeles personal injury attorneys additional puzzle pieces, like steering angle and brake application data. The more pieces there are, the more complete the picture is. Legal theories include comparative fault, sudden emergency, last clear chance, and other insurance company defenses.
As for damages issues, insurance company lawyers often question the necessity for certain treatments. Furthermore, unless the victim saw a doctor immediately, they usually argue that the victim’s injuries must not have been very bad.
This delay isn’t necessarily a bad thing. Early settlements often aren’t in the victim’s best interests. An early settlement might not account for all future medical expenses. In that case, the victim could be financially responsible for these charges.
Filing a ClaimTo keep the insurance company from dragging its feet, most attorneys file legal actions as soon as initial negotiations break down. Filing a claim also preserves the victim’s legal rights. Frequently, by this time, the Statute Of Limitations on injury claims is approaching. If the SOL passes, the victim immediately loses all rights to any compensation.
Most insurance companies file procedural motions which, in effect, seek to have the victim’s claim thrown out of court. Success at this juncture goes back to hard work during the pre-litigation process. If students do their homework, they generally do well on their tests. But if they blow off their homework, or take shortcuts during the pre-litigation phase, look out.
Discovery comes next. During discovery, most victims must submit to medical exams and give their depositions. That’s because California law requires both parties to put all their dominoes on the table during discovery.
As a result, if settlement negotiations stalled earlier, they usually restart at this point. Insurance company lawyers must face the fact that the victim’s claims are strong and their defenses are weak. If that wasn’t the case, the claim would not have gotten this far.
Resolving a ClaimAs the trial date approaches, if cases haven’t settled yet, most Los Angeles County judges refer them to mediation. A third-party mediator, who is usually an unaffiliated Los Angeles personal injury attorney, knows how to help parties find common ground and resolve their financial disputes. At this point, the only real issues in the case are the financial details.
During mediation, there is no judge, jury, or court reporter. Instead, the two sides informally get together, usually at an office suite. After the lawyers give opening statements to the mediator, the two sides retire to separate areas. The mediator then spends several hours conveying settlement offers and counter-offers back and forth. The parties get closer and closer until they reach an agreement. At least, that’s how mediation works about 90 percent of the time.
Even if the two sides don’t completely agree during mediation, they can usually at least narrow the issues for trial.
At trial, the victim/plaintiff must prove negligence, or a lack of care, by a preponderance of the evidence, or more likely than not. In some cases, an appeal might be possible. Because of the uncertainty at trial, it’s usually better to settle the case out of court, even if the victim must make some compromises.