When you suffer a personal injury caused by someone else, you may be entitled to some sort of compensation. To receive this compensation, you will have to make a claim, which in turn, may require you to file a personal injury lawsuit. Some of our clients are confused, or unsure, as to what this means. This detailed article will provide you with everything you need to know regarding a personal injury claim.
Stages of a Typical Henderson Personal Injury ClaimFirst, you will meet with a personal injury lawyer, who will evaluate your case and determine whether you even have a case, and can address the likelihood of winning and receiving compensation for your injuries. This first meeting, called an initial consultation, should be free if you are seeing any kind of reputable attorney.
You will need to share the details of your accident with the personal injury lawyer who can then assess your case to determine whether you are legally entitled to damages (the legal word for compensation) under your state's individual personal injury laws.
If your personal injury attorney agrees to take your case, they will usually do so on a contingency basis. That means you pay no money up front, but the lawyer keeps a percentage of the compensation they get for you from the negligent party that caused your injury. We will discuss contingency fees in greater detail later in this article.
The Claims Process
A claim is then made on the insurance carrier that insures the person, or company, that hurt you. During that claim process two issues are being evaluated: 1) Who is at fault regarding the accident; and 2) If they are at fault, then there is a discussion surrounding what is the amount, or value, of the damages that came from their actions. As those issues are evaluated, an experienced lawyer will do everything in their power to resolve your case without having to file a lawsuit. However, when that cannot be accomplished, your lawyer will sit down with you and discuss the options of filing a lawsuit.
If a lawsuit has to be filed, your lawyer will draft a complaint, which is the legal term for the papers that are filed with the court to begin a personal injury lawsuit.
Once the complaint is filed, your lawyer and the lawyer for the other party will begin a sometimes lengthy process known as discovery. This is where each side tries to find out as much information as they can about the accident that prompted the lawsuit. This can include asking for your medical records, information from your employer and other relevant information. At the same time, your lawyer will ask for information about the party that caused your injury.
As part of discovery, you may be asked by the other side to give a deposition which consists of a series of questions by the opposing lawyer.
What You Need To Know About Providing A Deposition In Your Personal Injury Case
Tell The TruthThe Court reporter will place you under oath prior to the deposition. It is imperative that you tell the truth. If you lie, most attorneys will be able to discover this. Various arguments can be made when the facts are not good for the case -- nothing can rehabilitate a liar.
Listen Carefully To The Question And Only Answer The Question AskedThe deposition is not the time to give your side of the story or volunteer information. Limit your response to the specific question. Don’t help the opposing attorney. Make him do his job. Many attorneys will be very nice and lull you into getting into a conversation with them. Don’t fall into this trap.
Don’t Talk Over The Attorney Asking QuestionsIn normal conversation we cut people off when we think we know what they are going to say. This is a nightmare for the court reporter as she can only take down one person speaking at a time. Wait to respond to the question until the attorney has finished asking the question. You may even want to think a second before responding. This will give the other attorneys time to make an objection to the question if necessary.
Don’t Speculate Or GuessWe often feel compelled to come up with an answer even if we are unsure of our response. Most depositions are taken many months or even years after the underlying incident or occurrence. It is perfectly acceptable to say, “I don’t remember,” or “I’m not sure.” However, do not use this to be evasive. Your side may need that information at trial as well and you are stuck with your answer. If you didn’t see or hear something, don’t make an assumption – simply say, “I don’t know.”
Give Your Best Testimony At The DepositionEven though you are allowed to change your answers in your transcript after the deposition, this is not a good trial strategy. If you make a substantive change to your testimony (one that could impact the trial) this will impact your credibility.
Don’t Argue With The Opposing AttorneyOne of the most important aspects of the deposition for the opposing attorney is the opportunity to size you up. How you appear as a witness is almost as important as what you say. If you are combative or argumentative not only will you not make a good witness, you oftentimes give up valuable information in the process.
After the evidence has been gathered, each side will usually file motions with the court. These can be anything from a request for the court to dismiss the case to merely asking that some evidence be excluded from the trial for various reasons.
Once the court has ruled on the motions, the parties may be required by the court to have at least one session with a court-approved mediator to try to settle the case before trial. Regardless of whether you actually meet with a mediator, your lawyer and the defendant's lawyer will undoubtedly be talking periodically throughout the case to see if they can reach a settlement agreement.
If you fail to settle the case out of court, the court will schedule the case for trial. Because courts are very busy, your trial date could be months, or even years, away. Once the trial begins, there will usually be a jury that decides whether you are entitled to any compensation and, if so, how much.
What You Need To Know About Litigating Your Personal Injury Case
Most personal injury clients are not even aware of the what the term “litigate” means. In its simplest terms, litigation means that I am going to file a lawsuit in the appropriate court to pursue my client’s legal rights. Many clients assume that the second we file a lawsuit we are looking at an imminent trial. The reality is that even in cases in which I am forced to litigate, better than 95% of those cases resolve without a decision by a judge, jury or arbitrator. However, the idea of sitting in a courtroom or being on the witness stand is terrifying to many clients. Some would even be willing to walk away with nothing rather than face the prospect of sitting on the witness stand being grilled by defense counsel. The idea of sitting through a deposition, as we mentioned above, is too much for the faint of heart. This is absolutely understandable. While I am totally comfortable in this world I have seen clients physically shaking when testifying and becoming anxious even talking about it. This fear can be the driving factor in clients accepting settlement offers that we may not feel are sufficient to fully compensate them.
There Are Risks In A Litigating A Personal Injury Case
In the legal world cases are decided by what we term “the finder of fact.” In a jury trial, the jury will decide the facts and ultimately decide the case. However, personal injury cases may also be decided by a judge (bench trial) or by an arbitrator (arbitration). In every case, the finder of fact comes with their own biases and prejudices. In Nevada, state court juries are comprised of eight people – only six of which are necessary to arrive at a verdict. These eight people are unknown until they come into the courtroom for jury selection on the day of trial. They are a random cross-section of people from various backgrounds. You could end up with an incredibly sympathetic, compassionate group or majority of jurors which highly favors the plaintiff. Likewise, you could end up with eight of the most heartless, unfeeling, ultra-conservative jurors in the jurisdiction.
At that point, your fate is sealed. Sometimes personal injury clients feel they are going to be able to tell their story to a “jury of their peers,” which they interpret as a jury filled with people who think and believe as they do. That would be nice but it does not happen. Juries are usually a diverse cross-section of people who have surprising biases and histories. Their decisions can be based upon the craziest facts. The jury system is truly a “black box” sometimes. This means there is really no rhyme or reason to how the jury arrives at its verdict. Judges and arbitrators are usually more predictable, but their biases are usually more pronounced. Neither jury, judge or arbitrator are known until after suit is filed, however.
The Time Frame For A Personal Injury Trial ResolutionSome of our personal injury clients are absolutely fine with the litigation process and the accompanying risk. However, nearly every personal injury client is taken aback when I tell them when we might get a resolution. From the date of filing the lawsuit until we get to trial can take between 3 to 5 years. Sometimes the value of the case necessitates going through a mandatory non-binding arbitration before a jury trial can be had. When personal injury clients consider the potential difference between the offer on the table and the prospect of potentially improving on that offer by 10% to 20%, they almost universally elect to resolve the case. The idea of waiting even three years to get their case resolved is too much for most of them.
So When Does Anyone File a Personal Injury Lawsuit?The issues above make litigation look like a bleak prospect. There are some mitigating factors that will convince some personal injury clients of the need to go forward with filing a lawsuit and entering litigation. The first, and most obvious, is when the client stands to get nothing from the settlement. Sometimes the offer is so low that after deducting costs, attorney fees and paying medical expenses and/or liens, the client is positioned to net little or nothing from the proposed settlement. In some cases, the personal injury client would still owe money to doctors for medical expenses based upon the offered settlement. In this situation the personal injury client usually has the “nothing to lose” mentality. Unless there is some glaring problem with the case, I am all for filing suit.
Another subset of clients are happy to tell their story and can’t wait to get in front of a jury. For them, the recovery is important, but not as important as getting some vindication. They want a chance to tell their story and want a jury or judge to tell them the value of their case. These are the rare clients for whom principle is more important than profit. If they lose, they lose. But they do not want to roll over simply to score a quick settlement. So long as they listen to legal advice and counsel these are great clients to have.
I sometimes have clients who decide they are willing to litigate when I explain to them that “risk” is a double-edged sword. Insurance adjusters and defense counsel do not want to incur legal fees and costs only to go to trial and pay more than they were willing to offer prior to the filing of suit. Sometimes adjusters will revisit settlement negotiations immediately after suit is filed. Once the client has “called their bluff” so to speak, the insurance adjuster will make an offer more in keeping with the true value of the case. This goes hand-in-hand with the time factor. Just because suit is filed does not mean the case will proceed to trial. As stated above, that is incredibly rare. As the case progresses and I can show the weaknesses in the defense, counsel for the insurance company will advise his client of the inherent risks of going forward and the case can settle. This can happen within just a few months of filing and the settlement will often be significantly better than what was offered pre-litigation.
In the event the case ultimately goes to trial, I am prepared to put my personal injury client’s case forward and fight for their rights. Justin and I have significant trial experience and have obtained many favorable verdicts. With those verdicts have come awards for attorney fees and costs which puts even more money in our personal injury clients’ pockets. Although that is not what most clients want, if necessary, Jones Wilson will take your case to trial to obtain the best result possible!
In over twenty-five years of practice in the area of personal injury I have learned an important truth – no one wants to go to trial. The vast majority of my clients want a favorable settlement as soon as possible. Attorneys are no different. While we all went to school to learn how to apply the rules of evidence, procedure and the law to the facts of cases. Unfortunately, juries are unpredictable and sometimes random in how they decide cases. As a result, many attorneys are too uncomfortable or even too scared to take a case to trial or even litigate.
If you win the case and are awarded compensation, you then have to collect it. If an insurance company is required to make the payment on behalf of the losing party, you may have to sign many documents before the check is cut.
Many personal injury lawyers agree that it is often better to settle a case before trial than to go through this sort of lengthy process. That is a decision you and your lawyer will make together. At Jones Wilson that is precisely the kind of advice and counsel we give to all of our clients. We are always trying to settle their cases, but we are never afraid to litigate and go to trial if necessary.
In advertising as a personal injury attorney I am very careful about how I talk about my trial experience and my willingness to go to trial on behalf of my clients. Many people seem to want an attorney with trial experience. However, when the time comes to decide whether to accept the insurance company’s last best offer or file a lawsuit, the overwhelming majority of my clients elect to accept settlement. Many clients are fearful of litigation. For some clients this fear is absolutely justified. Below are a number of reasons why clients elect, or I may recommend, not to litigate their personal injury case.
What Other Personal Injury Attorneys Don't Want You To KnowBecause we live in the information age, insurance companies keep records of which attorneys will go to trial and which will not. This enables an insurance company to undervalue a case knowing the attorney will not be willing to file suit. This will result in the attorney pressuring the client to settle a case for less than the full value. The attorney, who likely has a high-volume practice, will have other cases. The client may not. This is their one time obtain a fair settlement in their personal injury case.
Our Henderson Personal Injury Attorneys Have The Same Goals That You Have
We want to make our personal injury clients happy, but at the same time, we want them to get the full value of the claim. We will never put pressure on a client to take an offer that is less than fair. We will lay out the options for the client and do what we are being paid to do – provide legal advice and counsel. We hope to be able to settle a case quickly and for full value. However, we are always willing to litigate a case as far as the client wants us to take it. Insurance companies know this as well and are more inclined to offer a fair settlement to our clients as a result. In looking for a personal injury attorney, make sure you find one willing to protect your rights who is not afraid to take a case to trial. That is who we are.
Mistakes To Avoid If Your Case Is Litigated
Should you choose litigation rather than settlement, you are choosing to be patient. Patience is a requirement to litigation, because once litigation begins time deadlines are set. Those deadlines can extend the time of a case, turning weeks into months. So, whether litigation is chosen, or forced upon you by the insurance company, be patient and allow your retained professional advocate to represent you and your interests.
Listing out your injuries and providing the expenses you accrued due to those injuries is not enough in a personal injury claim. The claim process is involved, and can be particularly complicated to anyone not familiar with it. The first mistake that most people really make is they underestimate the claim process, assuming that their “logical” choices are sufficient to make their claim. While we would first tell everyone to never underestimate the complicated nature of a claim, there are actually other more common mistakes people make that could potentially jeopardize your personal injury case. This post will outline five important ones. A quick read, and following these guidelines will help save you a lot of added frustration while dealing with a claim.
You Do Not Adhere Completely to Your Medical Care PlanIf you are injured in an accident, the first thing you may do is seek medical attention. This act alone links your injury to the accident. If you sustained substantial injuries — and even then, if the injuries are relatively minor — you will be provided with a treatment plan. Even an Emergency Room physician’s common treatment plan is to follow up with a medical professional. This plan and any other “doctor orders” you are given should be strictly heeded. When you fail to follow the plan, take prescribed medicine, show up for medical visits, or followup with your doctor, or the specialist you are referred to by your doctor, an insurance company will use this as a defense or as a means to reduce its financial obligations to you. The argument is: by not following the orders of the medical professionals, you contributed to your own injury, or were not hurt has bad as you claim. Juries are often suspicious of lawsuits, and those that file them. Not following through with doctors instructions or treatment, is an easy way from them attack you as not credible.
Not Providing an Accurate Medical HistoryAfter filing a claim, insurance companies often request authorization from you to obtain your medical history. You need to be careful here. You want to provide an accurate medical history, but you do not need to provide your full medical history. An experienced attorney will advise you on this matter. This is a crucial issue, because an insurance company will review your medical history with a literal fine tooth comb. Their intention is to identify anything it can use against you to lower the value of your compensation. But not being honest about your medical history, allows the insurance company to again, challenge your credibility.
Not Filing a Claim within the Allotted Time Period per the Statute of LimitationsIn Nevada, for most personal injury claims, you have two (2) years to file a claim. If it is one day after the two-year mark, then the court will dismiss the case. These are arbitrary deadlines with little to no wiggle room unless your case fits within vert few well-defined exceptions. For instance, in some personal injury cases, you may not have been aware of the harm done to you, so it is not until you discover (or should have reasonably discovered) the harm at which time the statute of limitations begins — as opposed to the date the harm actually was inflicted. Do not wait until the last minute to being negotiating your claim. An experienced personal injury attorney can help. BUT, if you show up on an attorney’s door with weeks before the statute of limitations is set to run asking for help, you likely will not get it. Attorneys are very leery of getting involved in cases where the statute of limitations is set to run in a short time frame.
Not Declining the First Settlement Offer
It's important to mention again at this point that the insurance company may still provide you with a settlement before going to trial. Auto insurers and other insurance companies know that directly after the accident you are most vulnerable. They use this understanding — indeed prey on it — to offer you a quick settlement deal. They know you have property damage issues, and could use the money. They know you fear you may not get a better offer, and you really have no idea what your claim is even worth. They know you just want the whole matter over, and move on. As such, the first settlement offer will almost always be well-below what the auto insurance actually should pay. Be prepared to negotiate.
Not Providing a Strong Legal Analysis of the Case
A claim is always more than providing the details of what happened in the incident, the details of your injury, and the costs of the injury. Often it requires a thorough, persuasive legal analysis identifying why the other party is at fault (and not you). Without strong legal analysis, your case may be weakened with holes that the insurance company will fill with its own legal analysis. They can use this as a means to reduce the compensation owed to you, and in some cases, insurance companies may altogether deny your claim. Many people believe that if a dog bites someone, the owner is liable. This is actually not always the case. Many people believe that if you get rear ended in a car collision, the other driver is always at fault. That is not always the case. Without a strong legal analysis from the beginning, you may have to fight an uphill battle later. And when you have suffered considerable injuries, this additional battle is stress you don’t need.
Contingency Fees...Or How Your Personal Injury Attorney Will Get Paid
One of the distinguishing factors of personal injury attorneys is the use of the contingency fee. These fees allow attorneys to take cases which require a significant amount of work while allowing the client to avoid high retainers and monthly attorney bills. The contingency fee also allocates risk between the client and the attorney. The attorney understands his fee is “contingent” upon winning/settling the case. If the client does not recover, the attorney will not get paid. This forces the attorney to be selective about the cases he or she takes knowing that a bad case will result not only in not getting paid, but also having a dissatisfied client.
In over twenty-five years of practice I have noted that some clients have difficulty trusting my advice when I recommend settlement below how they value the case. My valuation is based upon significant prior experience with many jury trials, arbitration and settlements. The contingency fee has a built-in safeguard to ensure the attorney works hard for the client. The more the client makes the more the attorney makes. However, as with most reputable personal injury attorneys, I am worried more about protecting the client than I am about getting a fee. As I have told clients on many occasions, “I will have other cases, you may not.” My worst fear is a client who is truly injured who refuses to take my advice. I have seen good cases go to trial with juries who are unsympathetic or biased against the plaintiff for whatever reason. The plaintiff turned down a significant settlement offer only to walk away from trial or arbitration with nothing. This is by far my biggest fear as a personal injury attorney.
How Is Jones Wilson Different Than Other Personal Injury Lawyers?I suppose there are attorneys out there who take personal injury cases to make quick money and get out. These attorneys don’t last for obvious reasons. I have been in Southern Nevada my entire life and I plan to make Henderson my home for the remainder of my career. I have no interest in acting against my clients’ interests. I hope that I have built a reputation of being a trustworthy personal injury attorney who puts his clients (not his fee) first. At Jones Wilson LLP, we want to elevate the experience of the client and provide the best possible legal counsel we can.
Have You Been Injured In A Henderson Or Las Vegas Accident?
If you've been injured in an accident you need to speak with an personal injury lawyer as soon as possible. Contact us online or call our Henderson office directly at 702.405.6000 to schedule a free initial consultation.