Resolving Your Case
Every personal injury case has a beginning and an end, (although even after the case resolves you may continue to experience a lifetime of pain and painful memories.) The beginning of the case is obvious—the day you suffer your injury. The end can come at any stage. It can come after your lawyer sends the insurance company a settlement demand; it can come after your lawyer files a lawsuit but before you are deposed; it can come during discovery or after discovery closes; it can come at mediation; or it can come at trial whether through a jury verdict or even during the trial.
Settling a personal injury case requires careful consideration and should never be taken lightly. Once your case is settled, it is settled permanently; there’s no going back on the settlement.
Here are some ways that your Atlanta personal injury lawyer residents trust will help you resolve your case.
The Demand Package
A settlement demand package is a letter that your lawyer sends to the insurance company. The settlement demand can be mailed before a lawsuit is filed in which case O.C.G.A section 9-11-67.1 controls. There are several important factors that control pre-suit demands. One of the conditions under O.C.G.A section 9-11-67.1 is that you must give the insurer at least 30 days to consider the demand. If you send the demand after your lawyer has filed a lawsuit, then the demand is not controlled by the statute.
Regardless of whether the demand is made before your lawsuit is filed or after the lawsuit is filed, your lawyer will says that the offer is made pursuant to, and as authorized by, Southern General Insurance Company v. Holt, 262 Ga. 267, 416 S.E. 2d 274 (1992) (bad faith failure of insurer to meet time-limited demand), United States Fidelity & Guaranty Co. v. Evans, 116 Ga. App. 93, 156 S.E. 2d 809 (1967) (negligent, as opposed to bad faith, failure to settle claim and protect insured from excess judgment), and related cases.
Generally, your demand will include a narrative report by your personal injury lawyer that sets forth in detail the following topics:
- The facts of the accident
- How liability of the party has been established
- police report
- results of an investigation
- possibly opinion of accident reconstruction expert
- Citing of statutes and case law supporting liability
- Section on damages
- List of medical expenses from each medical provider
- Future medical expenses supported by medical opinion because of likelihood of future surgery, continuing care, medications, and use of assistive medical devices
- Loss of income established by pay stubs or tax records
- Future loss of income or loss of earning capacity that is supported by opinions of physician, vocational expert, and forensic economist
- Pain and suffering
- How the injury has affected your life and that of your family
- Emotional distress
- Final demand figure for settlement
Attached to the demand package are the medical bills, records, and statements from medical providers; employment records; police report; photographs of the accident scene; photographs of your injuries; possible reports of expert witnesses in accident reconstruction, vocational rehabilitation, or economics; and any other relevant documents supporting damages.
The insurer will either agree to your demand, submit a counter-offer that is less than the settlement offer, or refuse to pay. Then the decision is yours.
Another way that cases sometimes settle is when both sides attend mediation.
As an alternative to trial, the parties may attempt mediation. This is a non-binding process where a neutral third party is selected as the mediator who may be a retired judge, practicing lawyer, or someone trained in the mediation process. The role of the mediator is to assess the strengths and weaknesses of the case and of each party’s arguments, and to see where the parties stand regarding settlement. A mediator usually meets with each party or their respective attorneys in private. The mediator may also ask for the lowest and highest figures the plaintiff and insurance company would accept.
A mediator may offer his/her opinion regarding the disputed issues but will not advocate for either side. It is the goal of mediation for the parties to compromise in order to reach a settlement that seems fair.
Mediation can also serve as a useful tool for a party to reflect on any weaknesses in the case that may have been overlooked or not seriously considered. Sometimes mediation is successful, and cases resolve; sometimes mediation is not successful. What is important to remember is that just because your case goes to mediation does not mean you should cave. If you want to try your case in court to a jury, you should. You have that right. The jury is the final decision-maker and don’t let any personal injury lawyer ever make you settle if you want to go to trial.
Taking the Case to Trial
If mediation or settlement negotiations break down, you have the right to a trial by jury. You need to make sure your lawyer has filed a Complaint (the lawsuit) in the appropriate court and before the statute of limitations runs and bars your claim. Once the Complaint is filed, the court will issue deadlines for discovery to be completed, experts to be named, and pre-trial motions and other proceedings to take place before the scheduled trial date.
The Complaint and the Summons that accompanies the Complaint must be served on all defendants. The defendants then have a certain amount of time to file a written Answer.
The most important stage in litigation before trial is discovery. Generally, discovery lasts for 6 months though that time can be shortened or lengthened.
During discovery, each party has a right to request the production of all documents supporting the other party’s version of liability and the damages being asserted, and to depose or ask questions of the other party under oath. Discovery forms the foundation for the trial since both parties ideally will know what testimony will be offered and what documents will be produced when discovery has been completed.
Discovery typically includes:
- Request to respond to interrogatory questions
- Request for production of documents
- Request for admissions
- Depositions of the parties
- Depositions of physicians and witnesses
- Defense medical examination of the plaintiff
- Requests for court orders to preserve evidence
Interrogatories are basic questions to be answered in written form by either party. They ask for biographical information, insurance limits, what injuries are claimed, medical expenses incurred, the evidence supporting liability, the basis of any defenses, employment information, amount of income loss, names of all medical providers, if there are pre-existing injuries, past claims that were filed, and the facts of the accident that forms the basis for the lawsuit.
Depositions are a key tool in the discovery phase. If you are deposed, you will be asked questions by the opposing attorney under oath before a court reporter. Many questions may seem irrelevant or invasive, but the standard is whether the testimony or information elicited appears reasonably calculated to lead to the discovery of evidence that would be admissible at trial. This means hearsay evidence can be sought. Your own lawyer will prepare you for the questions, and attend the deposition with you. Generally, your personal injury lawyer will object to questions that ask for privileged communications, violate your privacy, are ambiguous or compound, or which violate certain rules.
Depositions are to discover what the parties’ version of the facts are and to pin down their testimony. If a witness’ testimony at trial differs from what was said in the deposition, or from the party’s answers to interrogatories, the opposing attorney may use that contradiction to question that party’s or witness’ credibility.
Lawyers may also take for preservation of evidence depositions which can be played for use at trial. Your personal injury lawyer, for example, may depose your surgeon months before the trial and then play that videotaped testimony in the courtroom.
Before trial, your attorney will have prepared you regarding your own testimony and how to respond to questions. Exhibits will be prepared for educating the jury, highlighting liability or for supporting damages. If there are certain matters that your attorney does not want the other party to present, then your lawyer will prepare motions in limine that are heard before the trial begins. These motions may ask the court to exclude evidence or testimony that is irrelevant or which may unfairly prejudice the jury.
The stages of a trial include:
- Voir dire—questions of potential jury members posed by each attorney.
- Jury is selected or impaneled, and sworn in by the court.
- Opening argument by plaintiff’s attorney—plaintiff presents the case and informs the jury what witnesses will testify, that the evidence presented will prove liability by defendant, that the plaintiff was severely injured as a result of the defendant’s negligent act, and that the plaintiff suffered damages and should be awarded compensation.
- Opening argument by defendant’s attorney—the defendant’s lawyer can either do the opening argument at this stage or wait until after the plaintiff’s case is presented and has rested.
- Plaintiff presents its case and evidence.
- Defense cross-examines the plaintiff’s witnesses.
- Plaintiff rests when all evidence has been offered.
- Defense may either present its own witnesses and evidence, or rest and not present any evidence; or move the court for a directed verdict asserting that there is no conflict in the evidence as to any material issue and should direct a defense verdict.
- Possible rebuttal witnesses by plaintiff to defense evidence.
- Possible surrebuttal witnesses by defendant.
- Jury instructions are given.
- Jury deliberates and returns a verdict.
Testimony at a personal injury trial can differ greatly depending on the nature and facts of each case, but may include any of the following: the plaintiff, the defendant, witnesses to the accident, family members, police officer, friends, co-workers, witnesses such as accident reconstruction expert, a biomechanical expert, a forensic economists, and medical providers. Police officers are not allowed to give opinions on who is at fault for the accident. Also, doctors are not required to testify, and their opinions can be presented in the form of a narrative report. O.C.G.A.§ 24-8-826.
Most personal injury cases settle before trial. But, and this is important, the decision to go to trial yours. You have the right to a jury trial. If your case does not settle, be ready for trial and feel confident that your lawyer is ready to zealously advocate for you.