You've hired an attorney...what's next?
You’ve decided to hire an attorney...now what? Here’s a little of what to expect:Initial Steps - Early Stages
Early in the process, you should engage in an extensive and detailed interview with your attorney. Your attorney should question you and you should be forthright about detailing your medical history, employment history, and driving history. The clearer the picture you provide, and the more questions your attorneys asks, the better. The more your attorney knows about you, the better he/she’s able to represent you.
Next, your attorney will inform the requisite insurance companies that you’re represented by counsel. This does two things: 1. Begins the dialogue between your attorney and insurance representatives; and 2. Prevents insurance adjusters from pestering you and attempting to obtain information from you which is protected by your right of privacy.
Whether you’re pursuing a claim against the at-fault party’s insurance company or your own, as in the case of an under-insured/uninsured motorist claim, insurance companies have an incentive to get you to settle quickly. The quicker you settle, the more likely you’ll settle for an amount less than the true worth of your claim. Remember, you have one shot and one shot only at settling your case. Once you settle and accept a settlement check, that’s it, there no going back and re-opening your claim.
Similarly, your attorney should not aggressively pressure you to settle before your medical treatment is completed. Your attorney should be patient and willing to let your medical treatment resolve before negotiating a settlement.
In addition to informing the requisite insurance companies of your representation, your lawyer will be then work to obtain information and documentation such as property damage photos, repair shop estimates, traffic collision reports, witness information and/or statements, and so on and so forth, i.e., any evidence to show that: 1. The collision wasn’t your fault; and 2. The collision was severe enough to cause you harm.
At the onset of representation, assuming you’ve contacted your attorney shortly after the auto accident and you’re still obtaining medical care, your lawyer should periodically keep in contact with you about how you feel, if there are any new medical complaints, and if you are receiving medical treatment and with whom. Your attorney should be documenting your medical care in your file, and doing it regularly to ensure no bits of information, potentially vital to your claim, falls in the cracks.
It is important that your attorney keep informed of changes in your symptoms and/or changes in your medical care and your attorney should detail your file with this information so when it’s time to present your claim to the insurance company, every aspect of your treatment is provided.
When your health has stabilized and your treatment is complete, your attorney will work to obtain all the requisite medical records and billings to ensure that all of your care and costs of same are accounted for. Your attorney will also work with you to obtain documentation of time you’ve lost from work so a claim for lost income can be made as well.
Pre-Lawsuit Settlement Negotiations
Once your attorney possesses all the necessary documentation, a “Demand Package” is commonly prepared. A Demand Package is what is sent to the at fault party’s insurance company demanding a specific total amount to settle all your claims. The ideal of a “Demand Package” is to present your total picture. Details of the auto accident are discussed and evidence detailing the collision should be attached as exhibits (e.g., property damage estimates, photographs, a copy of the traffic collision report, etc.).
Records from all your medical providers and medical billings should also be attached. If you’ll require future medical care, your Demand Package should discuss this as well.
Documentation of lost income from work should be included. Payroll records, pay stubs and the like should be attached as exhibits to detail the amount of work you’ve missed as a result of injuries incurred in the auto collision.
The Demand Package lets the requisite insurance company know what you’ve been through as a result of the auto accident, and what it’ll take to fairly compensate you for your losses. Most importantly, your attorney should describe the effect your injuries have had not only to you, but also to your loved ones. General damages, otherwise knows as pain and suffering damages, are maximized when your attorney capably conveys the effect your injuries have had on your life.
After the insurance company has had a chance to review your Demand Package your attorney should receive an “Offer” from the insurance company to settle your case. This is an amount that the insurance company is willing to offer to completely resolve all your claims.
At this point your attorney will convey this amount to you and you’ll have three choices: 1. Accept the amount to completely settle your claims; 2. Instruct your attorney to negotiate with the insurance company hoping the insurance company will raise the offer to an amount you’re comfortable with; or 3. Decline the offer.
Your attorney should advise you of the pros and cons of each option, and perhaps steer you towards one option over another, but ultimately the choice is yours.
Many claims settle at this point. If the attorney has done a good job presenting your claim via the Demand Package, a fair offer will hopefully be made, and further negotiations will have raised the offer to an acceptable amount.
If negotiations have failed, and you feel the insurance company isn’t being reasonable and is devaluing you claim, you have the option to file a lawsuit. This is a hardball tactic which many people loathe because litigation can be time consuming and costly, but a good attorney will be more than willing to follow this path if it is believed this is the best way to ensure you’re treated fairly. With many injuries, unfortunately, filing suit is the only way to eventually obtain a fair resolution of the case.
Filing a Lawsuit - The Litigation Process
You and your attorney decide your best option is litigation. A Summons and Complaint is filed by your attorney on your behalf.
Now you are on the court’s time line. What this means is the court, depending on the county you’ve decided to file your complaint (generally the county in which the accident occurred), will require you to complete specific steps in the litigation process in an effort to resolve your case prior to setting your case for trial. Different counties have varying time requirements and rules, but there are similarities.
First, most courts allow a certain amount of time, generally at the commencement of a lawsuit, for discovery. Discovery is a formal process between your attorney and the at fault party’s attorney (defense counsel) with the intention to exchange information regarding your case. The point of this process is to inform defense counsel (who’s likely been hired by the at-fault party’s insurance company) of every claim you likely included in your Demand Package or intend to present at trial.
From defense counsel and through your attorney, you will likely be served with Form Interrogatories (questions), Requests for Production of Documents (requests for documented evidence to substantiate your claims), as well as a Notice of Deposition (your required appearance in front of defense counsel to formally answer questions about your claims under oath).
Defense counsel may also require you to appear for a Defense Medical Examination, especially if you’re still complaining of medical problems and/or receiving treatment throughout the litigation process. California law allows defense counsel to require you to submit to an examination by a doctor of their choice if, at the time of the exam, you still are experiencing symptoms caused by an accident.
All courts are different, but most will require your attorney to present to court withing a few months of filing a lawsuit to formally meet with the Judge assigned to your case to establish your case’s course of action and time requirements.
An arbitration (sort of a mini-trial without a jury but in front of a court ordered arbitrator) will be scheduled, or perhaps a mediation (a meeting between the parties and a court ordered mediator with the intention to try to settle your case). If the case does not settle at arbitration or mediation, a date will thereafter be set for trial.
Trial - The End of the Line
Most courts make an effort to get cases to trial within 16 months of the date the lawsuit is filed, but due to backlog, sometimes it takes longer. Sometimes, your attorney may ask the court to delay your trial date because your injuries have not stabilized.
At trial, your attorney will present your claim in front of a jury. You’ll testify, witnesses to the accident may testify, and your doctor(s) will likely testify about your injuries. The defendant may testify, as well as any opposing experts.
After testimony is complete and all the evidence is submitted for the jury to review, it’s in their hands to provide a verdict (i.e., what they believe to be the value of your case). The jury renders a verdict, it becomes a judgment, and in most cases (finally), your case is done and (fingers crossed) you and your attorney are pleased!
Trial is, barring appeal, the last stop.