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Entries in filing personal injury suit (3)

Wednesday
May282014

What Happens in a Personal Injury Case After a Lawsuit is Filed?

Injury Attorney Los AngelesInjury Litigation Attorney

by David B. Bobrosky

(818) 907-3254

 

This is part of a series of blogs that discuss what a client can expect during various stages of a personal injury case. This post addresses what happens after a lawsuit is filed.

Have you ever heard someone refer to a case as being in “litigation”?  Well, if your attorney files a lawsuit in your case, you will be in “litigation” – it's simply the process of suing someone.

NOTE:  being in “litigation” and going to trial are not synonymous.

Personal InjuryAn overwhelming majority of the cases in which lawsuits are filed never go to trial, as they are settled prior to that point. When they do go to trial, it will usually take at least 12-18 months to get to that point, if not longer. So if you hear that your attorney has filed a lawsuit, don't panic. You are not automatically headed to trial.

Prior to filing the lawsuit, your attorney was most likely dealing directly with an insurance company and its adjuster. (Read the first post in this series: What Happens in a Personal Injury Case After You've Hired a PI Lawyer? Once a lawsuit is filed, the process changes and your injury lawyer will deal with an attorney for the insurance company.

Personal Injury Litigation:
Service of the Lawsuit 

The first step after filing the lawsuit with the court is to literally put the lawsuit in the defendant’s hands. This process is known as serving the lawsuit, and in most cases the courts require the lawsuit be served personally to the defendant.

Your PI attorney will hire a registered process server to go to the defendant’s home or work and attempt to personally give the defendant the paperwork for the lawsuit. Depending on how many defendants there are in your case and how difficult it is to find and serve the defendants, this process can take several weeks, if not more.

Once a defendant is served with the lawsuit,he or she generally has 30 days to formally respond in court. A defendant who is served with a lawsuit should immediately turn the paperwork over to his or her insurance company, assuming there is insurance coverage.

The insurance company will then either assign in-house counsel to handle the case, or hire an outside attorney for defense. In either situation, the attorney who is selected will now be officially representing the defendant.

The Discovery Process

Once the defendant responds, both parties can proceed with the litigation. The next step involves written discovery. This is where the parties attempt to get information from each other through a series of written questions, written requests for the other side to turn over relevant documents, and written requests for the other side to admit certain facts regarding the case.

Your role in the process will generally be in providing answers – to the other party’s questions, and in gathering documents for your attorney.

Many times attorneys will merely exchange e-mails or letters with the client, or maybe have an assistant meet with the client, to obtain the requested answers. In our office, whenever possible we prefer to meet personally with you to go over the requested information and discuss the answers to be provided. This is yet another opportunity for us to meet face to face with each other to discuss the case, and for us to continue to learn about you and what you’re going through.

Injury Litigation Depositions 

After the written discovery phase, the parties continue to discover information about the case by taking depositions. A deposition is the only time before trial that the other attorney can directly ask you questions prior to trial.

I will explain the deposition process in detail in a later blog, but remember, this is not your “day in court.”  This is the time when you respond to questions asked of you by the other attorney. Your “day in court” will come later in trial, if your case gets to that point.

Defense Medical Examinations

After your deposition, if you are either still receiving medical care or experiencing any symptoms from your injuries, most defense attorneys will have you evaluated by a doctor of their choice.

Although this is officially referred to as an “Independent Medical Examination,” there is nothing “independent” about it. The supposed “independent” doctor is hired directly by the insurance company's attorney to give the opinion the insurance company wants to hear: that your injuries are minor, nonexistent, or not related to the accident caused by the defendant. This is why most plaintiff attorneys typically refer to this as a Defense Medical Examination. I will discuss this in further detail in a future post as well.

Injury Settlements

Once all parties have obtained enough information, we will be in a position to discuss a settlement. Such discussions can occur informally between the attorneys, or in a more formal setting of a Mediation or Mandatory Settlement Conference. In personal injury mediations or settlement conferences, a neutral third party – an attorney, retired Judge, or active sitting Judge – will assist the parties in trying to reach an agreement.

If, and only if, the parties are unable to reach a settlement, will the case go to trial. Again, this will be at least a year after filing the lawsuit, and in most personal injury cases in Los Angeles, more likely 18 months or more after initially filing the lawsuit.

So when you hear your attorney say that a lawsuit has been filed in your case, stay calm. As you can see from the above, there are many steps to be taken, and much time will pass, before your case will go to trial, if it ever does.

What happens when you go to trial? I'll tackle that question, as well as several of the procedures discussed above, in greater detail in future postings.

 

David B. Bobrosky is an experienced Accident Lawyer and Shareholder in our Personal Injury Practice Group. Contact him for a free consultation: (818) 907-3254 or dbobrosky@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Jan092013

Los Angeles Personal Injury Compensation

Injury AttorneyAccident Attorney San Fernando Valley 

by David B. Bobrosky
(818) 907-3254

 

If you have been injured in an accident and are thinking about filing a personal injury lawsuit, you are most likely wondering “how much is my case worth?” It’s a legitimate question, as you need to decide if it’s worth going forward with your claim or lawsuit. However, it is not an easy question to answer. 

My advice is to consult with an experienced personal injury attorney. These consultations are generally free – they are at our firm – and will be time well spent. 

However, depending on your injuries, how soon it is after your accident, and what type of treatment you’ve received, a potential attorney may not be able to give you the answer you want. 

Injury Compensation LawyerIn fact, in most cases it should be difficult for any legitimate attorney to provide you with a specific answer. At the least though, an attorney will be able to let you know if it’s worth pursuing. In my view, less significant injuries may be better resolved by going through small claims court.  (Read: California Small Claims Court for Smaller Personal Injury Cases for more information.)

One of the things we can do as attorneys to help you answer this question is explain what type of damages are available to accident victims. Whether you have a small or large claim, consider the following categories when you think about your past and future losses that may be related to your accident:

 

Compensatory Damages

 

Compensatory Damages are exactly as they sound: They compensate you for losses you have suffered due to your accident or injury. Compensation can include:

Construction Accident LawyerEmotional Distress – The psychological consequences of your accident could cause anxiety and fear, not to mention sleep loss.

Enjoyment Loss – If your accident forces you to change your lifestyle, i.e. give up sports, hobbies or other recreational activities, you could be entitled to compensation under this category.

Income or Wages – Did you miss work to recover from your injury? Did the accident leave you disabled in some way, forcing you to change occupations, or leave you unable to work at all? You may be able to recover for these losses.

Change in Marital Relationship – Personal Injury lawyers call this Loss of Consortium, and it generally refers to the negative impact an injury could have on your marital relationship. These are common in more serious injury cases, for example when someone is left paralyzed. Every aspect of the marital relationship, including the ability to have sex and be intimate, is damaged. 

Medical Bills – You can be reimbursed for past and future medical care related to your accident. If you will need ongoing treatment for chronic pain, physical therapy, new prosthetics, etc. – your personal injury lawyer will consult medical experts to estimate the costs of that care.

Pain and Suffering – Pain and discomfort stemming from your injury. (For more details on what is included in this category, read: Pain and Suffering - Damages and Compensation in a Personal Injury Lawsuit.)

Property Damage or Loss – This compensation is based on the fair market value of any items lost because of an accident. They could include damage to a vehicle in the case of a car accident, replacement of furniture or clothing if you were injured by a defective product, etc. You could also receive Loss of Use compensation, i.e. reimbursement for a car rental.

 

Punitive Personal Injury Damages

 

In some personal injury cases, the defendant can be held liable for extreme carelessness or blatantly ignoring safety standards, usually with an eye to increasing profits. Juries can punish these defendants by awarding you punitive damages.

Additionally, they are meant to make an example of the defendant – in an effort to keep other companies or individuals from choosing profits over safety, for example. In car accidents, such punitive damages can be sought against drunk drivers and against distracted drivers (i.e., drivers who are talking or texting while driving). 

 

David B. Bobrosky is a Los Angeles Accident and Injury Attorney at our Firm. For more information about damages and compensation or to get a free consultation regarding your injury, email him: dbobrosky@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Tuesday
Mar272012

Injured on Public Property | Suing the Government Poses Challenges

Injury AttorneyPremises Liability Lawyer  

 

by David B. Bobrosky
(818) 907-3254

 

 

In most of the cases we handle, our clients have been injured by the negligence of someone else. The specific cause of action that is alleged and must be proven is generally, simple negligence.

When you’re injured on public property – it is not so simple. A person cannot sue the government for general negligence. Any government claims must be allowed by a specific statute.

Claims against a government entity can be very difficult, and there are many obstacles for people who do not know how to navigate such waters.

The most common claim we bring against government entities are claims for injuries due to a dangerous condition of public property. California Government Code Section 835 describes the elements a Plaintiff must prove when bringing such a claim:

  1. The government entity owns or controls the property at issue;         
  2. The subject property was in a dangerous condition at the time of the accident;       
  3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and
  4. The condition was created by a negligent or wrongful act or omission of an employee within the course and scope of employment.

-OR-

The entity had actual or constructive notice of the condition in a reasonable amount of time to have taken preventive measures.

I will not discuss all of the elements in this blog post. I will, however, discuss some of the most important aspects of handling such claims.

 

Determining Property Ownership – Is it Public or Private?

 

The first element can be a trap for the unwary.

If you are injured because of the condition of any property, we must quickly determine if it was owned or controlled by the government, and if so, which entity.

Sometimes it’s easy to determine if you've been injured on public property. For example, a dangerous curve in a roadway – easy to know it involves a public entity. We'll have to determine if that roadway is the responsibility of the State, the City, or the County.

Other situations may involve a piece of land or a business that seems to be private, but is operated by a government entity. Many times there are no signs letting us know who owns or runs a piece of property.

For example, we once represented a client who tripped and fell because of  uneven pavement in the parking lot of a restaurant. It just so happened that the State of California owned and operated the parking lot. If our client had waited to file a claim, the client may have missed the window for compensation by the responsible party (see the timeframes listed below).

 

Suing the Government – A Two-Step Process

 

Getting to a lawyer soon after a serious injury is imperative when a government claim could be involved, because:             

  1. A claim must be filed against the proper government entity within six months of the accident;
  2. The government has 45 days to respond to a claim. If the responsible entity denies the claim (and they almost always do), generally a lawsuit must be filed within 6 months of the written denial of the claim.

There are exceptions to these basic rules, and other time frames that might apply, but these are the general rules that must be followed. Courts are very strict when it comes to enforcing these statutory requirements.

 

The Government Claim - Proving the Dangerous Condition

 

Assuming you follow the proper procedures and have successfully initiated litigation, you must now prove your claim.

California Government Code Section 830(a) defines a “dangerous condition” as:

a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

One category of dangerous conditions is public property or improvements that are damaged or deteriorated. Examples can include:

  • A sidewalk that has become damaged resulting in uneven or broken pavement;
  • A stop sign that is covered by overhanging trees;
  • A roadway where lane markings have deteriorated, exposing travelers to potential accidents.

Another dangerous condition includes bad design or planning, such as:

  • A dangerous curve that is not easily recognized or navigated by drivers;
  • Turn lanes in areas where turning vehicles and oncoming drivers do not see each other in a sufficient amount of time to allow for safe decisions when turning;
  • Not installing crosswalks where they are obviously needed.

All of these conditions are examples of conditions that can create substantial risk of injuries to reasonably careful users.

Remember though, that government entities have a multitude of immunities and defenses available to them to fight these claims. This is why it is so important to hire an experienced personal injury lawyer if you have a government claim. A lawyer not experienced in handling government claims can easily lose them before they even get to trial.

David B. Bobrosky is an Encino Injury Attorney at our Firm. If you have questions about a personal injury you suffered, contact him via e-mail: dbobrosky@lewitthackman.com.

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

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