When do you file the Complaint or the Lawsuit?
[show_more more=”See Answer” less=”Hide Answer” color=”#0066CC” list=”»”]ANSWER: This is a question that we get asked a lot. Much depends on the nature of the injury. When the case involves a brain injury, we suggest that the lawsuit get filed early. If the significant injuries are scars, then we also suggest that the lawsuit be filed early. If the injury involves orthopedic injuries, then we suggest that we wait until the treatment is over, although in some situations, we may not want to wait. The thinking on the scar injuries is that if you wait too long, the scars will have healed long before an adjuster, the defense attorney, or the jury sees them. On the brain injury case, a lot of the recovery takes place early on. If you wait too long, then again, by the time the case gets to an adjuster, attorney, or the jury, the injury may have healed. Again, this is all case specific. If the injury is more orthopedic, such as a neck or low back injury, then you may want to wait, as one never knows for sure if the injury is going to resolve, or is surgery going to be needed. Early on, too often, it is too early to tell if surgery or some other significant treatment is going to be needed. And if surgery is needed, and the defense has an opportunity to have their doctor exam you, that doctor is more likely to claim that surgery or other significant treatment is not needed. If they exam you after you have had surgery, it is a much more difficult hurdle for the defense. And it is always much more difficult to recover for future treatment, then for treatment that you have already had. Juries are more reluctant to accept the fact that you are really going to have surgery, when you have already waited such a long time.
In California, there is a two year statute of limitations. And after you file the lawsuit, it takes from 9 to 12 months before you are in trial. So almost 3 years can go by, from the time of the incident, to when you are in trial.[/show_more]
What do you do after you file a Lawsuit?
[show_more more=”See Answer” less=”Hide Answer” color=”#0066CC” list=”»”]ANSWER: As noted, you have 2 years in a personal injury case to file your lawsuit. After it is filed, it then has to be served on the defendant[s]. A process server is paid to serve the lawsuit. This can be easy, or this can be difficult. Sometimes the defendant cannot be located. If we don’t have proper identification information on the defendant, and we cannot locate him/her or the business, then we have to hire an investigator to locate, and serve the defendant. Again, this can be easy or difficult. There are many ways to serve a defendant. You can serve them personally, or you can have them served by what is called “substitute service”. This is done, for example, by giving a copy of the summons and complaint to someone over the age of 18 at the house where the defendant lives, and then mailing a copy of these documents to the same address. Or leaving a copy and mailing, where the defendant works. If you have located where the defendant lives, but he/she is rarely home, and lives alone, the process server may not be able to serve them. A “stake out” may then be required.
You have a limited time in which to serve the defendant[s]. If too much time elapses, then the court is going to insist that you get the defendant[s] served. If you are still unsuccessful, then you may have to have the defendant served by way of publication.
This takes time, and can be expensive.But until the defendant is served, the case cannot proceed forward.[/show_more]
What are you doing, as the attorney, from the time you take the case, to when the case is filed?
[show_more more=”See Answer” less=”Hide Answer” color=”#0066CC” list=”»”]ANSWER: We are often asked, so what do you do if you have the case for a year or so, before you file the lawsuit. We are gathering information. We are getting all of your medical records and your medical bills. We also may need to get your employment records. This may sound easy. But unfortunately it is not. Some facilities will take weeks and weeks to respond to our request for records and bills. And when they don’t respond, we have to follow up, and ask again for the bills and records. Too often they will say that they did not get our letter, or they may say that they need to be paid to give us the records. They are entitled to be paid. Often we respond by saying that we already sent the letter, and we have to send it again. Or they will say after the second or third request that we are supposed to send our letter to a different address, or different department. Or they may say that they did not get the check to pay for the records. We then have to put a stop payment on the check and send it again. It is a nightmare. We are simply a low priority for them. Too many do not want to deal with attorneys, even though we are representing their patient. We are on the same side, yet they too often just are not interested. We have to be persistent, and constantly follow up. But we don’t expect to get these documents for at least 4 to 6 weeks.
We will also be reviewing the medical records that we do get to see what is being done, and what the doctor is suggesting. We are organizing the bills, and trying to find out how much was paid to the facility, as opposed to what was billed. This can also be a nightmare. There is the issue of “capitated” accounts, which throws a wrench into trying to find out what was paid or what is the value of the medical services that were provided.
We also try to say in contact with you to see how you are doing, how are your injuries, and how is the treatment coming along. We need to be kept informed so that we can make an informed decision as to when to file the lawsuit, etc.[/show_more]
What happens after you file the Lawsuit?
[show_more more=”See Answer” less=”Hide Answer” color=”#0066CC” list=”»”]ANSWER: As a general rule in California, once the lawsuit is filed, you will be in trial in 9 to 12 months. In the County of Los Angeles, this is not as likely. They have their own set of rules, when it comes to personal injury cases. But during this phase of the litigation, discovery is in process. Discovery is what each side does so that they can evaluate the strengths and weaknesses of their own case. Examples of discovery are written questions (called Interrogatories) that are sent by each side to the other. Other examples are Document Production, depositions, medical exams, etc. These will be discussed in more detail in another subsection.[/show_more]
When will we be given a Trial date?
[show_more more=”See Answer” less=”Hide Answer” color=”#0066CC” list=”»”]ANSWER: Once a case is filed, the case is generally in trial in about 9 to 12 months. In LA County, for personal injury cases, this is likely not going to occur. They do try to stick with this timeline, but it is often not adhered to. About 10 to 15 years ago, it took years and years to get to trial. For example, in Orange County it took about 2 years. In downtown LA it took 5 years. The court system changed, and they went away from what was called the “Master Calendar” system, to what they now, which is an “Assignment” system. When the case is filed, it is assigned to a specific department, and the case stays in that department, all the way through trial. This way the judge gets to know the case, and has more control of the case. But it is the judge that gives us the trial date, based on his/her own trial calendar, and that of the attorneys, parties, and experts. It is not solely up to us or any one party/attorney.[/show_more]
What is Discovery?
[show_more more=”See Answer” less=”Hide Answer” color=”#0066CC” list=”»”]ANSWER: As mentioned earlier, discovery is what takes place after a lawsuit has been filed and served, and the defendant has answered the complaint. This is what the attorneys will do in order to evaluate the strengths and weaknesses of their case. One of the first things that a party does is send out written questions (called “interrogatories”) to the other side. These have to be answered under penalty of perjury. The party needs to provide the attorney with the information that the attorney may not have in order to answer the questions accurately. The parties have about 30 days to provide the responses, but a lot of the time, each side asks for and gets additional time. Another form of discovery is called “Request for Production of Documents”. This is when each side is asked that the other side produce and provide to the other side, documents that are relevant to the case. For example, medical records, medical bills, photos, etc. These two parts of discovery are generally done very early in the case, but they can continue throughout the case.
Depositions (questioning under oath) is another form of discovery, and perhaps the most important part of discovery. A party will set (notice) a deposition of a plaintiff, or a defendant, or of a witness. The deposition usually takes place in the office of the other side. For example, when we set or take the deposition of the defendant, it will be done at our office. When the defense takes your deposition, it is generally done at their office. We will prepare you for your deposition. You will meet in our office a day or two ahead of the deposition, with an attorney from our office. You will go over the deposition, the facts of the incident, your medical treatment, etc. When you give your deposition, we will be at the deposition with you. A deposition is like a job interview. It is up to you to sell yourself, and your injuries, to the defense attorney, in an honest, and forthright manner. This is one of the most important parts of any case. You will be evaluated by the attorney who takes your deposition. As a general rule, he/she is not there to trick you, but to really find out what he/she thinks a jury will think of you.[/show_more]
What does a Contingency Fee mean?
[show_more more=”See Answer” less=”Hide Answer” color=”#0066CC” list=”»”]ANSWER: Almost all personal injury cases are handled as a contingency. That is, the attorney is paid only if there is a recovery. His or her fee is contingent on there being a recovery. If there is no recovery, then there is no fee. The client owes nothing to the attorney in the way of attorney’s fees. However, if the attorney has incurred and paid costs, then these may have to be paid back to the attorney, even if there is no recovery. Whether or not that is the case with your attorney depends on any agreement you may have with the attorney. But as a general rule, even the recovery of out of pocket costs are not owed to the attorney, or are not recoverable. They may also be on a contingency.
Most contingency fees are around 1/3 of the recovery. If the case goes to trial, the fee often increases. It can go to 40%, or 45%, or even 50%. So for example, if there is a recovery of $75,000, and the fee is 1/3, then the attorney’s fees in that case are $25,000. This generally does not include the issue of costs. Costs, or out of pocket payments by the attorney are another issue.
The issue and subject of costs will be discussed in another section.[/show_more]
What does it mean when an attorney refers to Costs?
[show_more more=”See Answer” less=”Hide Answer” color=”#0066CC” list=”»”]ANSWER: There are two money issues in the handling of a personal injury case (if not all cases). One is the attorney’s fees. These can be paid by the hour, or in the case of the typical personal injury case, they are contingency fees. The other part of the money issue is what is referred to as “costs”. This is money that the attorney pays someone else for work or costs related to the case. For example, when getting medical records, the medical provider has to be paid for the costs of copying and mailing the records to the law firm. If an investigator is needed, the investigator is paid. When the lawsuit is filed, the court charges a filing fee. It costs to hire a process server to serve the lawsuit. These are all “costs”. The attorney is going out of pocket to pay someone else. A court reporter who is used when a deposition is taken is another cost. Jury fees are costs. When an expert is hired, that expert has to be paid, and this is another cost.
Depending on the case, the costs can get very high.
Some law firms require the client to pay the costs as the case goes along. We do not, unless there is an issue that arises in the case.
The costs of experts can get significant, depending on the type of case. If an accident reconstruction expert is needed, this can be expensive. Hiring a medical expert can get very, very expensive. To pay a medical doctor to appear and testify at trial can cost several thousands of dollars.
We are often asked to keep the costs down. When an attorney has to pay money out of his pocket, he has a very high incentive to keep the costs down. He or she does not want to go out of pocket unless the attorney has to, and feels it is justified in the handling of the case. It makes no sense for an attorney to pay $10,000 in costs on a case where the total recovery is likely to be less than $25,000. Again, the attorney just does not want to spend money, out of his pocket, unless it is warranted, and justified.[/show_more]