Trial of a Personal Injury Claim

Lawyer GavelIf your case does not settle, the next thing that happens is the case will be tried in front of a jury. The first part of a trial is to pick a jury. The court subpoenas a large number of citizens from the county where the trial is held. They will be a jury panel from which your jury will be picked from. The panel will be escorted into the court room and the judge will advise them of the process of selecting a jury and what their duties and obligations are if picked to be on the jury.

Next, the attorneys ask questions of the panel to decide who they want as jurors in the case. This is called Voir Dire examination. It means the prospective juror is sworn to say the truth when questioned to ascertain his competence to serve as a juror. The lawyer who has filed the suit on behalf of the injured party goes first and then the lawyer defending the case goes next in asking questions of the panel. After the lawyers and the court excuse some of the panel for various reasons, those jurors that remain will be sworn in as the jury to try the case.

Next, the attorneys will address the jury and give their Opening Statements. The Plaintiff’s lawyer goes first and then the defense speaks next. The statements are the attorneys versions of the facts and what they believe they will prove to the jury to show that their client should prevail after all of the testimony has been presented to the jury.

Next the Plaintiff’s attorney will call the various witnesses he wants to testify on behalf of his client. After the direct examination of the Plaintiff’ lawyer, the defense lawyer will cross examine the witness. Keep in mind that the Plaintiff always goes first because he has brought the action and he must prove his claim. The defense defends against the claim to show the claim has not been proven. After all of the plaintiff’s witnesses have called and examined, the plaintiff rests his case and then the defense presents all of their witnesses and then the Plaintiff cross examines the defendants witnesses. Once all of the witnesses have testified, the defense rests its case.

Next, the attorneys give their closing statements to the jury as to what they believe the testimony has proved and why they feel the jury should decide in their clients favor. Again, the Plaintiff goes first and then the defense goes next. However, the Plaintiff gets to argue again. This is called Rebuttal.

After the final arguments are completed, the Judge will give the jury the instructions of the court to guide them in their deliberations in deciding the facts of the case. The Judge is responsible for deciding the law that governs the case and the jury’s responsibility is to decide the facts of the case.

After the instructions are given, the jury goes into a separate room to decide the case. They will take with them all of the various exhibits that have been placed in evidence. They will remain secluded until they have reached a verdict based on the law they were given by the court and the sworn testimony of the witnesses. The jury will then return to the court room and render its verdict.

What Happens After Suit is Filed in a Personal Injury Claim?

Scales of justiceOnce suit has been filed, the defendant is served with a summons and a copy of the complaint. They have 20 days to file their answer to the complaint.

Once that occurs, the parties serve interrogatories and request to produce documents pertinent to the issues in the case. Interrogatories are questions to the adverse party that must be answered within 30 days. This is called “DISCOVERY”. The defense wants to know more about you and your claim. They will ask about any prior accidents and injuries, previous law suits, lost income etc. They also want information regarding your past medical care and who has treated you for the injuries you are suing the defendant about. They want information to learn everything they can about your past, your family, your work history and your version of what happened in the accident that brought the suit against their client.

They also will request documents to be supplied to them regarding proof of lost income, tax returns, a copy of all of the medical and surgical records concerning your treatment for your injuries caused by the accident. If you had previous medical care for similar injuries, they will want those records as well. In short, they want to know everything about you and your past that could have anything to do with your claim for damages.

The same is true for your discovery of the defendant’s past including prior accidents, insurance coverage, his version of how the accident happened, any medical issues he might have had that could have played a part in the accident. Also, had he been drinking before the accident, was he on the phone or texting when the accident happened etc. Does he wear glasses when he drives and why? Again, you have the right to also to learn everything about the adverse party that could have played a part in the accident.

Next the attorneys will want to take the discovery depositions of the parties. A deposition is sworn testimony taken outside of the courthouse. Depositions are taken for two primary reasons. One is to learn as much as possible about the opposing party relative to the claim. Also, the attorneys want to see how you handle the questions asked of you and they want to see if a jury will like the deponent and believe him if the case has to tried.

The defense has the right to have a health care provider (ie: a doctor, psychologist, physical therapist etc.) examine the plaintiff regarding his claim of injury from the accident. They also have a right to secure all of plaintiff’s medical records and any other records relevant to the issues of the case.

Also, the attorneys will want to depose any and all witnesses to the accident. The defense also will want to depose the plaintiff’s treating physicians to obtain their opinions concerning the injuries, the cause of them and whether the injuries are temporary or permanent. If permanent, they will want to know about the need for future care, disability, work restrictions etc.

Once the discovery by the parties is completed, the parties are in a position to evaluate the claim and begin settlement discussions. They can also advise the court to have the matter set for trial.

Should I Settle or File Suit for an Injury Claim?

Tampa personal injury If the insurance company’s final settlement offer is less than you want for your claim, you have to be aware of what your rejection of the offer means. If the offer is woefully less than you feel your case is worth, then you don’t have much choice, either accept it or file suit.

However you must be aware of many issues and problems that come with filing suit. Once you sue the people that caused your injuries and financial losses, the insurance company will retain the services of an experienced, determined trial lawyer to defend the case and who will do his best to defeat you.

He is now in charge of the handling of the suit and the insurance adjuster is no longer in direct contact with you and your attorney. Defense attorneys are paid by the insurance company by the hour for the work they perform in defending the case. The longer the case drags on, the more they make. It is not in their best economic interest for the case to be resolved in a reasonable time. They will do everything they can to delay resolution of the matter and the justice you seek.

Also, when you file suit, you open yourself to questions about your life and you will have to provide information to the defense that you feel is personal and you may not want to answer but you will have to. Your past is fair game even though you feel there is no relevancy to your claim and the information sought.

You will have to answer questions about your past medical history, remote as it may be. Your financial information will have to provided if you are claiming a wage loss because of your injuries. Marital and family questions will be asked and must be answered, no matter how you question their need. In other words, you must disclose everything about your personal life even if the information has no bearing on your claim, with few exceptions.

Also, the courts are backed up with various lawsuits and litigation. There is such a backlog that it could take years before your case will finally be tried. The folks in Tallahassee have not sufficiently funded our courts so we can have enough Jurists and support personnel to handle the claims on a timely basis.

Think long and hard about this before you file your suit. If you feel you must file suit to receive the justice you deserve, then make sure you have a competent, experienced trial lawyer representing you to successfully take you through this process in an aggressive, timely manner.

When Do Settlement Discussions Begin

personal injury lawyer Tampa FLOnce the client has finished their medical/surgical treatment and has been released by their doctors is when settlement talks with the adverse party’s insurance carrier can begin.

However, you still need to provide information regarding the client’s economic losses caused by the accident and the resulting injuries and disabilities. Wage records from client’s employer must be obtained to determine the loss of income because of accident. Also documentation regarding future loss of income must be supplied.

Next, all the medical and hospital bills must be gathered to show any balances owed by the client. Additionally, a statement from the client’s health insurance company reflecting the exact amount they paid to the client’s health care providers must be obtained. They have a lien which allows them to be reimbursed for some, if not all, of the payments they have made out of the settlement proceeds. This is called Subrogation. It is in every health insurance policy.

By law, the client must pay the lien. If the lien is not paid when the case settles, then the client’s attorney is also responsible to pay the lien. The lien must be taken care of before the client receives the net proceeds of the settlement.

In catastrophic cases, a Life Care plan must be submitted to the adverse insurance carrier. This reflects the future life time care the client needs over the rest of his projected life expectancy for medical care, physical therapy, full time nursing care, special beds, wheel chairs etc. The total anticipated costs are provided by experts who gather all the information needed based on prior experience. The total cost is reduced to present value. This means the amount of money that needs to be received now to pay for the special needs of the client over his lifetime. Depending on the severity of the disability, this can be a significant amount of money.

Also, all of the medical and hospital records and all other records of health care providers must be obtained before any settlement discussions can take place. Once all of this information has been received and thoroughly reviewed and lawyer has a good idea of what the value of the case is for settlement purposes, then the attorney submits a settlement proposal to the insurance company and the discussions begin.

When an offer is made, the lawyer must discuss it with the client and make recommendations and decide to accept the offer or reduce the demand and continue to attempt to resolve the claim. The talks will continue until a settlement is reached or the final insurance company offer is rejected.

Before finally deciding to settle or not, the client must be informed by his attorney of the ramifications of rejecting the final offer. The only alternative is to file suit and become involved in litigation which usually takes a protracted amount of time, effort and expense. Also, the attorney’s percentage of the recovery for his fee increases from one third to forty percent once suit is filed. The client should be fully aware of all of this before he decides to settle or file suit.

Information Needed for a Personal Injury Claim

personal injury attorney Tampa FLOnce a client contracts to retain me to represent them regarding their injury claim, the first thing I do is find out what insurance coverage the at fault party has to compensate the client for the damages sustained by them. In auto accident cases, many times the adverse owner/driver may have minimal coverage, if any at all. If my client does not have uninsured/underinsured coverage (UMI), there may not be much I can do for them.

If there is sufficient insurance to compensate my client, then I secure a copy of the police report. I then will contact any witnesses listed on the report for their version of what happened. I also will visit the accident scene to confirm the information in the report.

Next, I will begin to secure the clients medical records. This will include the records from all of the healthcare providers who have seen and treated the client since the accident i.e. hospital, walk in clinic or physician emergency treatment providers.

Then I will obtain the medical records of any physician who have seen my client for follow-up care and treatment. Also important is whether or not the client has health insurance to pay for the medical charges to receive treatment. Most clients have PIP coverage on their own auto insurance to cover the beginning treatment. PIP usually has a $2000 deductible and then pays 80% of the medical expenses up to $ 10,000.

After that, the client needs to rely on their own personal health insurance to pay for their care. Unfortunately, many people do not have health insurance to pay for continuing health care. If that is the case, I will talk to the client’s doctors to see if they will accept a Letter of Protection (LOP). What this means is the doctor agrees to continue to care for the client and the client agrees to pay for the charges once the case is resolved. If there is a recovery, the medical charges are paid before the client the client receives any settlement proceeds. If, there is no recovery, the charges are still due and payable from the client.

Many health care providers will not agree to accept an LOP. It may take an extended period of time for the case to be resolved and there is no assurance that the client will prevail. I, fortunately, work with outstanding orthopedic physicians who will provide care with an LOP if the chances of a recovery is good.

Next, I will secure lost wage information and other employment information for the client. Keep in mind that PIP also pays 60% of lost wages in addition to medical payments. However, the maximum PIP pays is $10,000 for both. Future loss of wages must also be determined as well as the need for future care and treatment before any settlement can be agreed to.

Once the client has reached Maximum Medical Improvement (MMI) and no future care will improve the injuries and disabilities, then the claim is ready to proceed to settlement discussions with the opposing party’s insurance carrier.

What is the Statute of Limitations for a Personal injury claim?

lawyer-2A Statute of Limitations is a law which places a time limit on filing a claim for a legal remedy because of negligent conduct. If the statutory period expires, the injured party loses the right to file a lawsuit for money damages and other relief.

There are different statutory periods for different types of negligence claims. The Statute of Limitations starts at the time of the act giving rise to the injury.

An action founded on negligence has a four year Statute of Limitations. This includes automobile, truck, motorcycle, train, slip and fall, including premises liability, and product liability claims. The Statute of Limitations for a Uninsured/Underinsured vehicle claims is 5 years.

Medical Negligence claims have a two year Statute of Limitations from the time of the incident giving rise to the action or within two years from the discovery with due diligence not to exceed four years. This includes licensed physicians, osteopaths, podiatrists, dentists, pharmacists, chiropractors, hospitals and nursing homes. The Statute of Limitations for any negligent conduct causing Wrongful Death is two years.

The Statute of Limitations for Legal Negligence claims is two years from the time the cause was discovered or should have been discovered with the exercise of due diligence. If you wish to know which statute applies in a specific situation, please call us. Don’t let the time to file suit expire because your claim will be forever barred if that happens.