YOU & YOUR PERSONAL INJURY CLAIM
Considering A Lawsuit
We've had an accident and we think we should talk to a lawyer. . .
A personal injury case begins with a phone call or an office visit. You will probably be worried, self-conscious, somewhat suspicious and perhaps even a bit embarrassed. Remember, we have been through this countless times with many other people.
Your lawyer should explain to you that any personal injury case depends on three things. First, liability; second, damages; and third, can we collect? Your lawyer should first listen to the facts of your case. How did the accident occur. What were the particular circumstances? such as: the time of day, the car involved, the treatment expected, the product which malfunctioned, etc. Is there a right for this wrong???
Next, your lawyer will need to analyze your case based upon the law. Our laws are very complex and the facts of the case will decide what laws control. For instance, if your accident involves a federal agency then special laws and procedures control. Claims against the federal government must first be filed as an administrative claim within a specific time period. When the administrative claim is denied, a federal tort action may then be filed in a Federal Court and then the case is tried before a Judge, no jury is allowed. However, if a city, state or other public agency is involved, then a specific notice needs to be filed within a limited time after your injury. Once the notice is filed, a claim must be made. If the claim is denied only then may a lawsuit can be started, but it must be started within a relatively brief period of time. Is a private person or business involved? If so, then special laws may apply. As an example, if you have a complaint against a professional such as a lawyer, doctor or accountant, generally an expert opinion is needed to establish that there was a wrongdoing.
Certain businesses may have had you sign a release or waiver prior to the accident. This is common in recreational accidents such as in skiing, snowmobiling, hunting, yachting or diving. Those releases or waivers may or may not be effective in limiting your right to sue to recover damages for injuries.
In any case, you and your lawyer need to decide whether the law provides a remedy to you.
Do I have a good case?
There are no "good" personal injury cases.
Even if your case has what lawyers call "good" liability - which means that there was negligence committed by someone else which caused your damages - your case can fail due to the absence of significant damages or because the person or persons responsible haven't any money or insurance, or are immune or cannot be found. If the case is "good" - in the sometimes upside down world of the law - then you have been injured so badly that you certainly wish that the accident had never happened. We and other lawyers who have been certified by the American Board of Trial Advocacy, will tell you that we never met a truly injured person who wouldn't trade their lawsuit for their pre-accident circumstances. We understand and can help you deal with your loss and obtain fair compensation for your damages. We cannot obtain revenge, a better medical result, or turn back the hands of time.
How much is my case worth?
If you have a serious injury and there is no need to proceed with your case quickly, your lawyer might tell you that your immediate energies are best spent getting well. Frequent doctor appointments, medication and therapy can be exhausting. You probably don't need a lawsuit right away on top of the responsibility you have to get well.
When you file a lawsuit for personal injuries, you are called the plaintiff. As a plaintiff, you have some very serious responsibilities. One of those responsibilities is to genuinely try your hardest to get well. If you don't, the person you sued (who is called the defendant) can argue to the Court and the jury that your damages should be reduced because you did not do all you could to get the best result.
We need your help in determining your damages. Save your medical bills, pharmacy receipts and any health or accident insurance forms. Find, organize and copy your tax returns for the past several years in order to establish your earnings pattern. Your special circumstances will determine how far back we will need your tax returns. We may need to hire specialists such as an accountant or an economist to determine your economic losses, especially if you have a permanent injury. Death cases are particularly tragic and economically hard on families. In such cases, an economist is almost certainly required to determine the damages.
Many people who have had a catastrophic accident keep a journal. In your case, the jury will ultimately need to evaluate your credibility and damages. Oddly enough, jury's often consider many details that some lawyers think are unimportant. A journal which keeps a record of details can often be an important tool to remind you of dates, events, phone calls and appointments. In a business lawsuit alleging fraud or failure to pay, the written record is often the key piece of evidence. Your lawyer may suggest, after an accident or event, that you start a journal to record your pain, suffering and recovery. Your testimony on these issues may then be more detailed and more credible.
There is a lot of casual talk about how trial lawyers "invent" claims against wealthy businesses, cities or corporations. You may hear people talk about "deep pockets" or "target defendants." Ignore statements by others who are suspicious of your motives or who disparage your ethics in pursuing a claim allowed by the law. I have seen far more cases fail due to the absence of a collectible defendant who devastated a family than I have seen claims which were "invented" by disreputable lawyers or claimants.
Can I collect?
Whether you can collect is a function of the financial position of the person who wronged you. If your case is not collectible, your lawyer will advise you as soon as this is discovered. Occasionally, a case needs to be pursued to its conclusion before we determine whether or not you will be able to collect. However, in many states including Wisconsin, the details concerning a defendant's insurance must be disclosed upon a proper discovery request of the plaintiff. Your lawyer should be able to tell you early on whether the it is likely that a case is collectible or not. Drivers in Wisconsin and many other states are not required to obtain insurance. If you have been injured by an uninsured driver and have insurance yourself, you may be able to make a claim against your own insurance company for the damages you have sustained under the "uninsured motorist" coverage contained in your policy. Every policy of automobile insurance sold in Wisconsin must provide "uninsured motorist" coverage. All automobile insurance sold in Wisconsin must provide at least $25,000 in liability coverage. Frequently, however, this minimum coverage is not sufficient to compensate you for the full amount of your damages. In those cases you may be able to make a claim against your own insurance company under your "underinsured motorist" coverage. Underinsured motorist coverage is not mandatory and you will only be able to make this claim if you have purchased such coverage.
All employers are supposed to carry worker's compensation coverage. But not all do. If you are insured against disability, or for health/medical expenses, or have automobile insurance and were in a car accident, then you need to follow through with the proper forms and submissions to your insurance company. Many times, your own insurance company will require repayment of any benefits it paid to you or on your behalf if you recover in your lawsuit. This is called a "subrogation interest" and you need to discuss the details with your lawyer.
PROCEEDING WITH A CLAIM
If you as the client and we as the lawyers agree to proceed with the case, the first step can be either:
Contacting the defendant, confidentially, to discuss the case without the necessity of suit; Filing a required notice of claim as for a federal, state or public defendant; or Preparing and filing with a court a pleading entitled "Complaint" and then having it, along with a duly issued summons, served on the defendant.
Generally, we recommend that your interests are best served by promptly starting the case. If a case is filed and set for trial, two problems are solved. First, there is no worry that the statute of limitations may expire. Secondly, a deadline is created by setting the case for trial. Nothing is better to foster settlement negotiations than a trial date. There are some well recognized exceptions to this rule. Of course some cases require certain notice filings as a mandatory prerequisite to a court filing.
Other cases are clearly strong on liability and damages and are collectible. The defendant may be sophisticated and believe that it is cheaper, easier, and better for everyone to negotiate immediately. Perhaps the defendant is interested in having no public record made of the negligence and wants to settle on the condition of confidentiality. Some people argue that it is important to have a public trial to expose another's wrongdoing. Our job is to provide a service to the client, not to humiliate the defendant. Leave the investigative reporting to the television journalists.
If we believe that filing the complaint might not be the right first step for you, then we will tell you.
DISCOVERY
Discovery is the legal term used to describe the investigative activities in a case after it is filed and before trial. Historically, neither side found out what the other side's evidence was prior to trial. Ambush, surprise, and concealment were the order of the day. However, as the courts became more sophisticated and more crowded, it became clear that if both sides knew each other's case before the trial, that the trial would be more fair and the parties would have a better idea as to whether their case could be settled. Now, as a matter of rule, each side must disclose to the other its evidence, witnesses and exhibits upon a proper request. With the advent of word processing and high speed printers, requests for discovery have become a matter of form and routine.
As a plaintiff in a personal injury case, you will be asked and are obliged by the law to answer particular questions routinely posed by a defendant. The information sought must be reasonably calculated to lead to evidence that would be admissible in court. This broad standard allows the seemingly most trivial information to be "discoverable" including detailed personal and medical histories, copies of many personal documents and answers to questions concerning your case, evidence and exhibits. Your lawyer and our office staff will help you in the discovery but you must remember that all discovery is given under oath and must be complete, truthful and consistent.
We will conduct discovery on your behalf in order to assist us in the preparation of your case. We are bound by the same rules as the defendant. Generally, because a defendant's medical condition is not an issue (it usually is for the plaintiff in a personal injury case), the defendant is not required to answer questions which touch upon such personal matters as the defendant may inquire of the plaintiff. The same bears true as to the defendant's finances. Although a defendant's insurance details are discoverable, proof of a defendant's financial status is not generally permitted in order to prove a proposition as to a defendant's conduct. Therefore, you may be required to disclose far more information about yourself than you may ever learn about a defendant.
Written Questions
These are called Interrogatories. They are like a written series of questions you would imagine a lawyer asking in Court. This is generally the first "wave" of discovery served by both sides. Answers to Interrogatories must be given in detail, fully and in writing. We believe that the most credible evidence comes directly from you. We instruct clients to prepare the written answers themselves, in their own words. This prevents the answers from appearing in stilted, formal, legal language. Your credibility may ultimately hinge on the jury hearing a reading of these answers. The answers must therefore be genuine and truthful.
Investigation
Even though we are now entitled to discovery, many cases are still won and lost on the quality of investigation done by your lawyer. Especially before the case begins, an investigation should include photos of relevant evidence, a visit to any place important to the events, interviews of witnesses and a complete background check on the defendant. We may hire professional investigators to complete our investigations. The expense of any investigation generally pays for itself many times over, either in the value of the case or the money saved from pursuing a bad case. We strongly advise against you undertaking any investigation on your own. We must also caution you that certain types of witness interviews may be inadmissible and unethical, especially if conducted of a defendant's management employees without the consent of the defendant or defendant's lawyer.
You and Your Deposition
Your deposition is probably the most important part of your case. A deposition is testimony given under oath, prior to trial. Generally, the deposition is taken by the opposing lawyer. A court reporter is present to transcribe all of the testimony. Your lawyer is also present. Preparation for your deposition is vital. Preparation for your deposition really begins during your first meeting with the lawyer. What happened? Where did it happen? When did it happen? Who was there? How did it happen? These are all questions which you will review with your lawyer. In addition, we will meet with you before your deposition to assist you in your final preparation. The most important advice is: Listen closely to the question and answer the question, and; Tell the truth.
A deposition has three purposes. First, it is the opposing lawyer's opportunity to meet you and evaluate you. It is therefore important that you arrive on time, neatly dressed and groomed, prepared, articulate, and direct. We prohibit smoking during depositions. The opposing lawyer will, after the deposition, report to his or her client (or the insurance adjuster) and the most significant aspect of the report will be how, in the lawyer's judgment, you will be viewed by a jury. Are you the sort of person who evokes trust and sympathy, or are you the sort of person who is a turn off- Second, the opposing lawyer will be seeking, and is entitled to know, your story. This means that you will need to be able to recount, as consistently and accurately as possible, the events important to the lawsuit. You will probably be asked many of the questions already posed in Interrogatories - about your background. If you need to, you are entitled to refer to your prior answers when giving your deposition testimony. However, unless otherwise instructed you are to bring no documents or things to your deposition. Third, a deposition is an opportunity for the opposing lawyer to get you to make damaging admissions. No case is airtight, and every case has its weakness. It is best to discuss these matters with your lawyer in advance. Nothing is to be volunteered in a deposition and you are to only answer the questions posed. However, you must anticipate that the opposing lawyer is well prepared, and you must be ready to truthfully manage any weaknesses in your case.
The Defense Medical Exam
Often, defendants will hire a physician to examine an injury victim and give an opinion as to the victim's medical condition. This exam is frequently called the I.M.E. for "Independent Medical Exam". A defendant is entitled to the exam whenever a plaintiff places his or her physical condition at issue. At the exam, you should keep notes of the examining doctor's actions and remember you are there to be evaluated; not for treatment. A report by the examining doctor is required to be submitted and we will share a copy of the report with you.
Our Discovery About Your Case and How You Can Help
We have developed a variety of techniques which we use in our cases. These discovery techniques have been developed after years of experience and many hours of patient office work. We have attended many seminars concentrating on pre-trial discovery. You can be a great help to us by sharing with us any information you have concerning the parties and witnesses to your case. Every detail that you can recall concerning the individuals involved will assist us in better preparing for their depositions. Additionally, if you review the discovery requests we make and the responses, you may have insights into matters which help your case. The key to this is to stay involved in the case, review the discovery (either at our office or via copies dispatched to your home) and to give us any useful feed back you might have.
SHOULD YOU SETTLE YOUR CASE
Over 95% of all civil actions conclude by settlement according to the most recent study completed by the RAND Corporation. In addition to our many years of experience we have access to a variety of sources for information about jury verdicts and settlements. We will draw upon all of this knowledge and experience in making a judgment about the value of your case. We have obtained settlements and jury verdicts for thousands, tens of thousands and even millions of dollars. We are confident, therefore, that we can give a thoughtful evaluation to any case based upon the injuries, damages, losses and liability picture.
Settlements are encouraged. A settlement eliminates the risk of losing the case and often provides a guarantee of medical treatment and income replacement which is the guiding object of many cases.
Often, settlements are mediated. The mediator might a judge not assigned to the trial of the case, who will review submissions by both sides in evaluating the case and recommending settlement. Many cases are referred to private attorneys engaged in the business of providing mediation services. Discuss settlement of your case with your attorney. However, you must recognize that no case will settle unless you are prepared to win at trial. The best formula for a successful settlement is thorough preparation for trial.
PREPARING FOR YOUR TRIAL
The best advice we can give people about what to expect at trial is to ignore stereotypes derived from TV shows and movies. As with your deposition, it is important for you to arrive comfortably dressed and well prepared. We will have worked to arrange the appearance of your witnesses and prepared your exhibits. We may ask you to help by providing transportation for witnesses or to remember to bring an exhibit. You should also be prepared to be encouraged by the Court to continue settlement conversations. A case can be settled at any time during a trial, even after a verdict. During jury selection you may be asked to share your views with your lawyer as to which jurors appear more receptive to our views of the case.
Remember that as a party to a jury case, at least one juror will probably be looking at you and your lawyer throughout the trial. Be careful of your facial expressions and other "body language". You may look at the jurors but you should not gesture at them either with a hand or your face. The judge will instruct the jury that they are not to speak with any party or counsel and you must respect these instructions. Criminal penalties may attach to any misconduct between a party, counsel and a sitting juror. After the trial some judges permit your lawyer to contact jurors to get feedback from them as to their deliberation and verdict. This is prohibited in federal court, however.
In a trial all witnesses are sworn to tell the truth prior to their testimony. The plaintiff has the burden of proof and therefore begins the presentation of evidence by calling witnesses and the submitting of exhibits. The party calling a witness is the proponent of the witness and generally is limited to ask direct questions which do not suggest an answer. Defense counsel is entitled to cross-examine each witness the plaintiff calls. You will probably testify as a witness for your case. After the plaintiff's evidence is presented, the defendant presents witnesses whom the plaintiff may cross-examine.
At the conclusion of the evidence, the jury is instructed on the law, retires to deliberate and render its verdict.
PAYMENT OF LITIGATION EXPENSES AND ATTORNEY FEES
"A lawyer's time and advice are his stock in trade." Abraham Lincoln
Written Fee Agreements - All of our fee agreements are in writing. Payment of costs and fees are due and payable under the terms of the written fee agreement.
Contingent Fees - The United States have traditionally allowed contingent fees as the individual's key to the courthouse. By allowing an individual or a company to pay their lawyer out of the recovery, people who cannot afford to pay a lawyer an hourly rate are able to retain experienced and competent lawyers to undertake cases. Contingent fee agreements must be in writing to be enforceable by either the lawyer or the client. If you prefer to pay your lawyer on an hourly basis, you may do so. The law requires that our clients be ultimately responsible for any costs and expenses. In this way, the lawyer does not gain an interest in the litigation. These expenses include investigation, filing fees, service of process, expert witness fees, photocopying, postage, long distance, etc.
Hourly or Flat Fee Agreements - Although clients typically elect to retain us in personal injury cases under a contingent fee agreement, there are certain cases (divorce, collection, business disputes) that we typically take on an hourly basis or for a fixed fee.
We handle many business disputes on an hourly, fixed fee or contingent basis depending on the facts of each case. We have also handled personal injury cases on a mixed fee basis, generally undertaking the investigation of a complex case for a flat fee, pre-paid, and then offering terms on a contingent fee basis as requested by the client.
Referral Fees - Our firm will not pay any referral fee except in proportion to the work performed and the responsibility undertaken by the referring lawyer.
Disbursement of Proceeds of a Settlement or Judgment - Payment of the proceeds from a personal injury settlement is made through our firm's Trust Account, which by law participates in IOLTA. You will receive a written disbursement statement detailing the fees, any unpaid expenses and the net proceeds to you.
ETHICS
We are guided at all times by the Rules for Professional Conduct established by the Wisconsin Supreme Court. Violation of a disciplinary rule is a basis for sanction. Sanctions may include suspension from the practice of law, disbarment or public censure. In all of our professional conduct we strive to exceed the ethical rules established for attorneys. The fundamental premises of our firm is to make honest, and competent representation available to the public.
If we decide to withdraw from your case, we shall do so strictly in accord with the rules concerning withdrawal. Such rules require notice to the client at your last known address, advisement as to the status of the proceedings and a court order granting counsel's permission to withdraw. We have withdrawn from cases when we felt unable to ethically represent the client within the bounds of the law, when the client has refused to abide by an agreement as to fees and costs or when the client has requested that we withdraw. As your lawyers, we serve at your pleasure. Although we do not like to be fired, it is your right to transfer your case to another lawyer and we are obligated to cooperate in the transfer. You may need to bring any outstanding bills up to date, provide expenses for reproducing the file and to cooperate in directing us to new counsel.
Lawyer/Client communications are confidential. Just like the communications between the priest and the penitent, the doctor and patient and the husband and wife. Nobody can force a lawyer to reveal his or her client's secrets except the client. A waiver of the privilege is implied when a client sues a lawyer. A plan of a crime about to be committed is an exception to this rule.
Remember that your lawyer is your employee and agent. If you want to release your lawyer, you may. Your lawyer is working for you but is not required to work without fair payment. If there is a dispute over fees and costs, we may withdraw from our representation of you and file a lien on the case. A lien is akin to a mortgage on the case and protects a lawyer from an unscrupulous client. When a legitimate lien for a lawyer's fee is placed on your case, any settlement you may ultimately receive is subject to reduction first for any fees or costs owing and unpaid.
We welcome the opportunity to discuss the specifics of your case. To speak with a lawyer who specializes in personal injury claims, call us at 715-832-3491.
