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There Isn't Anything "Frivolous" About It: A Look At The Personal Injury Process

When Should You Hire a Personal Injury Attorney?

When people have to file a claim with an insurance company, many of them feel that they are being mistreated, and are receiving less than they actually should. They aren’t being paranoid; they actually are being mistreated and are receiving less than they should. Insurance companies play hardball as a matter of course, and their initial settlement offer is usually the absolute bare minimum.

The decision to take legal action against someone should not be taken lightly. While much of the talk about “frivolous lawsuits” is simply media spin from insurers and pharmaceutical companies, a lawsuit should not be initiated unless the plaintiff is absolutely sure that the damages they received are both authentic and provable.

The most important question that you should ask yourself in the event of an accident and a subsequent settlement offer is “Have I lost anything that can’t be replaced?” If the accident is something that you can simply walk away from, the answer is probably “no.” In the case of a minor fender bender, or a trip to the hospital to treat some scrapes and bruises, what the insurer offers you for property damage and medical bills should be sufficient. At worst, you’ve lost maybe a day of work, and if you receive an hourly wage and your employer isn’t the sort to take that into consideration, then you should mention that to the insurers. But for most minor accidents, the damage is repaired fairly quickly and efficiently, and the minor medical bills are as well.

If the driver of the other car was at fault, and he was uninsured or underinsured, you should definitely consult an attorney, usually as quickly as possible. While many states require uninsured and underinsured insurance coverage, it’s usually only for a limited amount, and your damages might add up to significantly more than the coverage. In some states, you only have a limited amount of time to take legal action against the uninsured driver, and some insurance policies have language that require arbitration agreements between you and the uninsured to be reached within 60 days after the day of the accident.

Another definite time to seek legal counsel is when the accident results in serious injuries. The necessity of lengthy hospital stays and long recovery periods are when insurance companies call out the big guns. In order for this to make sense, you should consider that the insurance company of the person that hit you doesn’t represent you. There is no sense of “doing the right thing” among insurance companies. Millions of people on the Gulf Coast are being told by their own insurers that there is nothing that they can do. If that’s how they treat their own clients, what sort of treatment do you think you’ll receive? Getting what is necessary out of an insurance company in serious situations takes absolute command of the facts and a thorough understanding of insurance and liability law.

The most important thing that you can do if you are seriously injured is to document every aspect of your injuries and every facet of your treatment. Going for a follow up visit after an emergency room visit is crucial as well, as some injuries caused by the accident might not manifest themselves until later.

Types of Damages

When an injury victim is in the process of recovery, it seems pointless to categorize all the costs. Medical bills, money lost from time off of work, and getting your property repaired simply mean writing one check after another. But in legal terms, all of these damages fall under specific categories, and each category can be specifically reimbursed.

Compensatory Damages: The purpose of filing for compensatory damages is to get the victim back to the position that he or she was in prior to the accident. This is called making the victim “whole.” Compensatory damages include medical expenses, lost wages, and the recovery and repair of lost property.

General Damages: In some cases, there are losses that can’t be quantified with a dollar amount. The loss of a spouse or child due to the negligent actions of a loved one falls under this category. Similarly, a shortened life expectancy due to an occupational illness falls under this category as well. These damages are also categorized as “pain and suffering.”

Special Damages: These cover the out of pocket costs of the winning party. For instance, the cost of a rental car that was paid by an accident victim would fall under the special damages category.

Punitive Damages: These are damages that go above and beyond the actual financial harm done by the defendant. Punitive damages are awarded when the conduct of the defendant was found to be willfully harmful or negligent.

Stages of a Personal Injury Lawsuit

Despite media reports to the contrary, the great majority of personal injury lawsuits don’t occur because the plaintiff wants to get rich. The operative word is “injury,” which means pain, suffering, damage and loss. We have yet to represent a client who believes that their injury was a good thing, or that it’s a great money making opportunity. Our clients come to us because something awful happened to them or someone they love, and those responsible for the damage aren’t accepting their responsibility. Given the choice between going through a lawsuit and having their lives go back to the way it was before the injury, every single client that we have ever represented would take the latter option without even thinking about it.

Taken from start to finish, a personal injury suit can last for years. The negotiation of a fair settlement can take anywhere from four to nine months, while an actual trial can take up to four years. It is time consuming and exacting, and anyone who thinks that lawsuits are “frivolous” obviously has a very loose grasp on the toll that it takes on the victims and their families.

The first step in initiating legal action on behalf on an injured party is the demand letter, in which we inform the party that we feel is responsible for the injury what happened. We tell them exactly how the injury has affected our clients, and what the financial consequences of those injuries are. We then give them a deadline to respond to our request. The purpose of this is to give the responsible party an opportunity to do the right thing and accept responsibility for the incident, which would spare everyone the ordeal of a trial. If the responsible party accepts the terms of the letter, then we negotiate a settlement that we believe is fair and proper. If we can’t come to an adequate agreement, or if the responsible party refuses to accept the terms, then we move on to the actual filing of the suit.

Filing a complaint is the technical term for legally filing a lawsuit. We officially request the assistance of the courts to help resolve the dispute. We officially identify the plaintiff (our client) and the defendant (the person or group that we believe is responsible for our client’s injury,) and give a thorough account of the incident that occurred and what the damages are. Once the complaint is filed, the defendant is notified of the lawsuit and is required to respond to the complaint within a set period of time. The counsel for the defendant will almost always file for a dismissal of the case on the grounds that the case is without merit before it even gets to the next phase. They usually do this for two reasons. The first is that they are hoping that the judge will actually find the case groundless or that the defendants were not in violation of any existing law or statute. The second reason is to buy time.

The discovery process is what happens when both parties gather the facts and evidence needed to prove their case. This includes the gathering of records, depositions, questioning witnesses, or visiting the scene of the incident. Both the plaintiff and the defendant have the right to request any pertinent information from each other, and in some cases a court order may be filed to gain access to information. This can be crucial when the case involves insurance companies or HMO’s.

The discovery process is especially important to the plaintiff, because it is up to him to prove that the fault lies with the defendant. The standards of burden of proof in a civil case are less exacting than with a criminal case. In a civil case, the plaintiff must show that a “preponderance of the evidence” points to the culpability of the defendant. This means that over half of the evidence has to prove incriminating to the defendant.

The trial process has minor variations from state to state, but generally speaking it occurs as follows:

Presentation by Plaintiff: This is where we present our side of the case to either the judge or jury. We describe what happened, how it affected our client, and how the defendant was liable for the damages. We make our points using the evidence that we accumulated during the discovery process. The counsel for the defendant is allowed to scrutinize any evidence that we present and question (cross examine) and witnesses that we have.

Presentation by Defendant: At this point, it’s the defendants turn to give his side of the story, and we have the equal right to scrutinize his evidence and cross examine his witnesses.

Rebuttal by Plaintiff: Since the burden of proof is on us, we have the opportunity to go over the defendant’s side of the story a second time. This allows us to go over and possible de-emphasize any points that the defense made during the course of their presentation.

Summation by Both Parties: This is basically a recap of the important parts of the trial, in which we explain how and why our clients rights have been violated and the defense explains why they think they have lived up to their responsibility.

Judge’s Instruction to the Jury: If the case is being heard by a jury, the judge has an obligation to inform them specifically what laws or principles are being potentially violated here. This is meant to insure that, during the course of their deliberations, the jury will stay within the parameters of what the case was about.

Jury Deliberation: The jury goes over all the facts of the case and determines whether or not the defendant was liable for the damages requested by the plaintiff.

Verdict: The jury reveals their decision.

Judgment: This is where the amount of the award (or damages) is determined. It could be the entire amount requested by the plaintiff, or it could be less.

Appeal: Both the plaintiff and the defendant have the right to appeal the decision if they lose. Defendants will often appeal if the plaintiff is offered punitive damages, usually on the grounds that punitive damages are excessive.

After all this, it should be clear that any victim who is willing to go through this lengthy, contentious and emotional process is not doing so on a whim, or in the hopes of winning a “lawsuit lottery.” It should also be considered that insurers, pharmaceutical companies and HMO’s have some of the sharpest legal minds in the country at their service, and anyone foolish enough to bring a “frivolous lawsuit” their way will be made short work of.

The Law Firm of Rappaport, Glass, Green and Levine take pride in serving the real needs of real victims. Our clients are everyday people who have suffered devastating losses, and those losses are usually downplayed or discounted by the people responsible for them. We take our relationships with our clients seriously, and do everything we can to make sure that they are treated fairly and decently during the legal process. If you or a loved one has suffered a painful and costly injury, and you don’t feel that your needs and concerns are being taken seriously by those responsible, contact our offices for a free case assessment today.