Litigation if the case does not settle
1. What happens if the insurance company does not meet our settlement range and the case does not settle?
If the insurance company and your lawyer cannot agree upon the value of your case, it may be necessary to begin a lawsuit. This is also referred to as litigation. The lawsuit will usually be brought against the person, persons, or company who caused your injuries and not against the insurance company unless the case is an uninsured or underinsured motorist case.
In some cases, your lawyer may suggest waiting a period of time before commencing the lawsuit in the hope that the insurance company will increase its evaluation of your claim. However, in cases where the parties are significantly far apart with respect to the value of a claim, litigation is usually necessary.
2. What factors would cause my case to go to litigation?
There are usually several reasons why a case does not settle including the fullowing:
- The insurance company believes that you and your lawyer have asked for more money than they are willing to pay vuluntarily for the claim.
- Liability, that is, “fault,” is either being denied by the insurance company or the insurance company believes that you and/or some other party bear some responsibility for your own injuries.
- The insurance company, because of internal reasons or company pulicy, resists payment of your claim and is forcing claimants to go through the trouble of a lawsuit.
- The insurance company is stalling for time hoping that you and your lawyer will reduce your value of the claim.
- The insurance company does not believe that you were injured, or that you were injured as badly as you claim. Therefore, the company is requiring that you pursue a lawsuit to prove your injuries.
3. How does a lawsuit affect me?
If a lawsuit becomes necessary, your attorney will explain in detail what you will have to do. Usually the process takes the fullowing steps:
- After final investigation and preparation, your lawyer will file a claim in court by preparing what is known as a Summons and Complaint. This is usually done in the lawyer’s office without your invulvement.
- The Summons and Complaint are served upon the person, persons, or company who caused your injuries, and the responsible party is referred to as the defendant. You will be called the plaintiff.
- After the defendant is served with the complaint, the insurance company will hire a lawyer to defend the lawsuit and that lawyer will file what is known as an Answer to the Complaint. The Answer usually denies responsibility for the injuries, denies the extent of your injuries, and may possibly seek to bring in other parties who might have been invulved in the incident which caused your injuries.
- A process is started called discovery in which both sides seek information from each other. You will be invulved in this process. The process includes some or all of the following:
- Questions, called “interrogatories,” which require written answers.
- Oral testimony from you and other parties called “depositions.” Such testimony takes place in front of the lawyers with a court reporter who takes down the questions and answers in order to prepare a transcript.
- “Requests for production of documents” in which the lawyers ask for medical reports, witness statements, medical bills, and other documents relating to the case. In most cases, your lawyer will have to send such documents to the other lawyer even if they have already been supplied to the insurance company.
- “Requests for admissions” which is a process that requires the parties to narrow the issues by admitting certain facts that are not in dispute.
- Pretrial procedures such as motions in court and other tactics that process the case to trial.
- Preparation for trial including possible video depositions of your doctors, meeting with witnesses, writing briefs, and appearances of your attorney before the trial judge.
- The trial, finally, if your case does not settle before the trial date.
4. Is it possible that my case will settle before trial?
Yes. Many cases settle during the lawsuit process while a small minority of cases has to proceed all the way through trial. It is impossible to predict when or if any particular case will settle.
5. What will I have to do if my case proceeds to a lawsuit?
After the lawsuit is commenced, your lawyer will contact you about your duties. You will probably have to answer interrogatories and attend a deposition. During litigation it is important for you to do at least the fullowing:
- Stay in touch with your lawyer.
- Inform your lawyer of any changes of address, phone number, work status, marital status or changes in your injury.
- Respond to your lawyer’s letters and phone calls if he or she requests contact.
- Prepare and obtain any documents requested from your lawyer immediately after the request.
- Keep track of all medical bills and lost income and report such information to your lawyer.
- Stay out of trouble which could be used against you in court such as drunk driving, shoplifting and other criminal activities.
- g. Maintain your employment status and avoid confrontations with your employer that could be used against you at trial.
6. Does a lawsuit require a substantial amount of work from my lawyer and, if so, will I be charged extra?
Some contingent fee agreements provide for additional percentages if a lawsuit is required. Your attorney will advise you of this at the time he or she accepts your case. Litigation is a very time‑consuming and difficult process. Your lawyer will have to prepare documents for court, take depositions, research the law, correspond with the defense attorney, correspond with you, correspond with your witnesses and doctors and prepare for trial. Your file will grow in size and your lawyer will probably have other people working on your case such as secretaries, paralegals and associates. Therefore, you can expect that your lawyer will be very busy preparing your case for trial.
7. Will I have to answer interrogatories?
Interrogatories are questions sent to your lawyer by the lawyer for the defendant. You and your lawyer may be asked to answer a number of questions, usually 30 or more, with various sub‑parts. Some of these answers will be prepared by you and some of them will be prepared by your lawyer.
You will usually be asked about your complete medical history, educational history, work history, and a number of questions about the incident and your injuries. It is important that you take time to prepare your answers carefully and accurately. If you leave something out that is important, or if there is a piece of information that is not accurate, such mistakes can be used against you at trial or at your deposition. It is important to prepare your answers within the time frame requested by your lawyer.
Most clients do not like having to answer detailed questions such as interrogatories and often they put off the task until the last minute. Do not fall into this trap. If you take the time to prepare your interrogatory answers accurately and carefully, you are more likely to have a successful case.
8. What are depositions?
Depositions are very important procedures because a deposition is usually the first time you will actually testify about your case. Depositions take place in the office of one of the lawyers involved in the case. In your deposition, the attorney for the defendant will ask you questions about your injuries, the incident, and background information about you and your family. Your answers will be taken down word for word by a court reporter who will transcribe your testimony. The transcript of your testimony will be read by all attorneys, representatives of the insurance company, and portions may be used at the trial.
9. What if I don’t want to have my deposition taken?
Unfortunately, you don’t have a choice. If you have commenced a lawsuit involving personal injuries, the law requires that you must be deposed if requested to do so by the other side.
10. Does the person or persons who caused my injuries have to be deposed also?
If your lawyer decides it is necessary, a deposition of the defendant or defendants will also take place. In some cases, your lawyer may believe that it is better not to take a deposition. Your attorney will make that decision.
11. How do I prepare for a deposition?
Your lawyer will assist you in preparing for your deposition. In most cases you will be given plenty of notice so that you will have tune to prepare. In addition to advice given to you by your lawyer, you should consider the following:
- Dress appropriately as though you were going for a job interview.
- Read your interrogatory answers and any other documents your lawyer instructs you to read. Read them carefully ‑‑ don’t just skim through them. Preparation will mean a better chance of a favorable settlement.
- Tell the truth even if you think the answer might hurt you. The worse possible answer is an answer which is a lie. If the defense attorney catches you in a lie, he or she now has the opportunity to destroy your entire case.
- Don’t argue with the defense lawyer. It will never do you a bit of good to argue with the defense attorney.
- Be polite. It can only help you and will never hurt you.
- Listen carefully to the lawyer’s questions. Do not jump ahead and answer the questions before the lawyer finishes.
- Think before speaking.
- Don’t agree just because the defense attorney asks you to agree. Some defense attorneys use the trick of making several statements to which you agree. Then, they throw in a final statement which may not be true, but because you are so used to agreeing, you admit something that you should not. Therefore, it is important to listen to each statement or question carefully.
- Don’t answer more than you have to. Some witnesses ramble on and on. Rambling will destroy your case. Simply answer the questions and do not explain your answer unless you are requested to do so.
- Look the defense attorney in the eye as much as possible.
- Speak clearly.
12. Why are depositions so important?
There are several reasons why your deposition is important.
- The defense attorney will be sizing you up. If he or she is impressed with you and your testimony, settlement becomes more likely.
- The deposition is excellent preparation for trial. It gives you the opportunity to experience testifying.
- Your testimony, if it is false, can be used against you at trial.