Filing an lawsuit can be an important step to getting an adequate recovery after an injury. This is a legal decision that should be made by your attorney with your input. Before filing suit in your case, a good attorney will obtain your permission and explain to you why a lawsuit should be filed.
Although a lawsuit may have to be filed, settlement is always possible. Negotiations should continue even after a lawsuit has been filed. Only a small percentage of lawsuits actually go to trial. When it is necessary, the following are the major steps required to bring the case to trial:and
What are Pleadings?
Pleadings are the documents parties file in court that form the basis of a lawsuit. The following is intended to be general information only. Each case is unique.
A lawsuit is filed against an opposing party by filing a document in court known as a complaint. The person who brings the action is the plaintiff. The person against whom the action is brought is the defendant. The complaint is a statement of facts alleging the names of the parties and alleging why the conduct of the defendant entitles the plaintiff to recover damages.
At the time the plaintiff’s complaint is filed, a summons is issued and served on the defendant by an officer of the Court, usually a Deputy Sheriff or process server, informing the defendant that suit has been filed and that a response must be made within a given period of time or a judgment will be taken against him.
The response filed by the defendant is called an Answer, which is prepared by the attorney for the defendant. Alternatively, if a defense attorney feels there is a fatal flaw with the lawsuit, a motion to dismiss the complaint or to strike portions of the complaint may be filed.
What is Discovery?
Once an action is filed, both sides have a right to discover facts concerning the opposing party’s case. Normal discovery proceedings include written interrogatories, depositions, production of records, and sometimes medical examinations.
Each side may serve written questions on the opposing party, called interrogatories. You are required to answer these questions within a prescribed period of time, in writing and under oath. We will serve interrogatories on the defendant on your behalf, and the defendant will serve interrogatories on you, which you must answer. Our staff will assist you in preparing your answers.
A deposition is an oral and transcribed statement, under oath, which may be used by either side in a lawsuit. It has the same effect as testifying at trial. It is used to learn as much as possible about the other side’s claims or defenses. Those present are the parties concerned, their lawyers, sometimes an additional witness or two, and a court reporter that records the questions and answers.
The lawyers normally agree in advance where the deposition will be held. It is usually in the office of one of the lawyers. You are required by law to give a deposition. This is not something in which we have a choice. Because of this, we will need your full cooperation. Prior to the deposition, your lawyer will go over the facts of the case with you and answer any questions you might have.
It is important that you be prepared well in advance of the deposition date.
In giving a deposition, there are a few rules to follow:
Always tell the truth, even if it hurts your case.
Answer only the questions. Do not make any voluntary statements or speeches.
Think before you make any answer to any questions. If it concerns a matter about which you do not know, or a detail you do not remember, you may state this. However, once you have stated that you do not know or remember, it’s hard to change your testimony at trial.
Always be polite.
Frequently the other attorney will ask you many questions which will seem to you to have no bearing upon the case. Nevertheless, it is your duty to answer these questions, notwithstanding the fact that they may irritate you. Never conceal prior injuries or prior illnesses. Remember, the other side has the means of obtaining such information.
What is Case Evaluation?
Case Evaluation is a hearing where your case is heard before a group of three attorneys who determine the value of your damages and assess a monetary amount. The amount awarded is non-binding, meaning if one side rejects the award, the case moves on to trial. However, if both sides accept the amount awarded, the case settles for that amount.
What is the value of my case?
It is impossible for us to tell immediately how much money, if any, you will recover in connection with your case. There is no formula and each case is unique and different. In cases of serious injury, the ultimate recovery is often related to the amount of insurance coverage available, as well as the nature, extent, and duration of your injuries, along with an assessment of liability. As your attorneys, we feel it is our primary duty to obtain an amount of money, which will fairly and justly compensate you for your injuries. We will make every effort to do this by locating all sources of money. We will advise you of our evaluation in this regard.
In general, there is a recovery of money for the following elements of damage:
The nature and extent of injury, including whether the injury is permanent, and the amount of disability.
Physical pain and suffering.
Scarring or disfigurement.
Mental anguish, embarrassment and humiliation.
Medical expenses, both past and reasonably certain to be incurred in the future. This includes mileage to and from the doctor or hospital.
Wage loss, past and future and loss of capacity
Loss of consortium for your spouse, past and future.
What are the first steps in working with my attorney?
When you are first interviewed, general information regarding your case is obtained. Materials relating to things you should or should not do will be furnished to you. You will be requested to sign certain authorization forms, which will allow us to obtain your medical records and other necessary information.
We will notify the person who was responsible for your injury and/or their insurance company that you have retained us as your attorneys. Requests will be sent to all of the doctors and hospitals involved in your care for your chart and billing information.
Who should I talk to about my case?
Do not talk about your case with anyone except this office and your doctors. If your own insurance company wants to talk about your case before they pay your medical bills, please refer them to us.
What should I sign?
We will obtain any necessary information from employers, schools, or other persons. You should not sign anything for anyone else until you check with us first.
What things should I avoid doing when I am involved in a lawsuit?
Do not give any statements, written, recorded, or oral, to anyone concerning your accident or injuries without first getting our approval.
Do not make any incorrect statement to any doctor who may treat or examine you respecting any prior injuries or accidents. If you don’t remember, say so.
Do not make any incorrect statements to any doctor about your current medical condition.
What are some things to do when I am involved in lawsuit?
Inform your attorney immediately of any change of address and/or telephone number or employment.
If your vehicle was damaged, try to obtain pictures before you get it repaired. Use color film and take a whole roll of pictures. Bring the film to us and we will have it developed. If you take pictures with a digital camera, e-mail the photos to our office. Make sure you save the photos on your home computer. If you do not have a camera, please call and we will make arrangements to take the pictures.
Save all pill bottles, casts, braces, and any other items from your doctors.
Give us any pictures and videos of the accident or accident scene that you or anyone else has taken for you.
Tell us of any changes in your job or job duties and responsibilities.
Be sure to obtain and save all receipts itemizing any and all expenses you incurred as a result of your accident. Receipts must be dated and contain legible and complete vendor identification.
Inform us of anything you think has a bearing on the case, including extensive medical treatment or hospitalization.
What are the big mistakes I can make during the course of the lawsuit?
Not seeing the doctor if you are in pain.
Failing to tell your doctor about medical problems due to the accident.
Not doing what your doctor tells you and not keeping your doctor appointments.
Making incorrect statements about how the accident occurred.
Discussing your case with anyone other than your attorney or your doctor.
Why is it so important to follow my doctor’s advice?
Be sure to do what your doctors tell you. There is never a reason or excuse to miss a doctor’s appointment. By missing a doctor’s appointment, you are saying to the doctor and to the insurance company that you don’t hurt and that it doesn’t matter that much. Our job is to make a recovery for you for the pain and suffering that can be proven. Not going to the doctor is a good way to prove that you are not hurting and that you don’t care. If you don’t care, the doctor may not care. It is very important for you to work hard to get well and to go to all of your appointments.
If you are in pain and you do not see a doctor, the insurance company and the jury will not believe that you are having pain.
Each time you go to the doctor and report that you are still having pain, your doctor makes an entry in his or her chart. It is important for your doctor to have up-to-date information on your condition. Some clients get discouraged and do not see their doctor even though they are having pain. This may harm your claim. It is important that your doctor knows how you are feeling.
Should I pay any medical bills I receive?
While your case is pending against the insurance company of the person that caused your injury, we try to arrange to have your medical bills paid by your own insurance company. Payment of medical bills may come from your automobile insurance carrier, another person’s automobile insurance carrier, worker’s compensation or your own health insurance policy. In premises liability cases, the defendant may have a medical payment provision found in their insurance policy that mandates payment of your medical bills up to a certain amount, regardless of liability. Please be sure that all medical bills that relate to your injury are sent to our office so that we may forward them to the appropriate insurance company.
What records should I keep?
Please be sure to keep the following records for your claim:
Lost work time and lost wages.
Expenses resulting from your injuries, including home care, prescription costs and transportation costs
Running list of physical limitations you are experiencing and activities you can no longer participate in but could before the accident.
It is important to make your entries on an ongoing basis. A summary at the end of each month will not be as helpful to us. Copies of checks and receipts of payment, as well as the above records, will be very helpful when you may be asked by the insurance company or an attorney to recall your pain, physical disabilities, and out-of-pocket expenses such as medication and medical co-pays.
What if I don’t have medical insurance?
Some of our clients are involved in an accident and do have health insurance coverage, or the claim is not covered under worker’s compensation. Although it depends on the type of case, often medical insurance can be found either through a medical payment provision or through an automobile no-fault policy.
If no medical insurance can be found, your doctor will expect to be paid by you at the conclusion of the case. Often they will require you to agree, in writing, to have us pay them directly from the proceeds you receive. If your doctor asks you to sign what is often called a lien letter, be sure to contact our office. In some cases, it may not be appropriate for you to sign such an agreement.
What should I do if I am being watched and photographed?
When an injured person files a claim, insurance companies routinely conduct a detailed investigation of the injured person’s background. It is not uncommon for an insurance company investigator to park his surveillance van near your house and videotape your activities. These investigators work very hard to obtain videotapes of claimants lifting heavy groceries or engaging in strenuous physical activity. However, these same surveillance tapes have been useful to corroborate our client’s physical limitations, including the use of canes, crutches and other assistance devices.
If you believe you are being watched, please contact our office.
Should I consider bankruptcy?
If you are considering filing bankruptcy, you should know that you might lose all rights to your personal injury case. The bankruptcy court can take over your case, settle your case and give your settlement money to your creditors, and you will receive nothing. Be sure to talk to your lawyer before filing bankruptcy.
What if the person I am suing is an uninsured/underinsured driver?
If you were hit by an uninsured motorist or underinsured motorist, you may be eligible for benefits under your own policy or the policy that covered the vehicle you were in when the accident happened. Many insurance companies have special provisions if you desire to proceed against the uninsured motorist provision of the policy. In most cases, you will be able to collect pain and suffering damages against your own insurance company in the same way as if the driver that hit you did have insurance. We ask that you provide us with a complete copy of your own insurance policy in force at the time of the accident to determine what insurance is available.
Can I sue the government or a governmental entity?
Any injury claim, whether it stems from a car collision or other event that involves the government is subject to special rules. The governmental entity involved may be a city, county, or local government, or a road commission. Generally, in Michigan a governmental entity or government employee is immune from civil liability except in very specific situations. In addition, proper notice must be provided to the appropriate governmental agency. This notice must often be provided within a certain time after the accident. If proper notice is not provided in time, you may forever lose your ability to go forward with a claim.
The law regarding governmental entities and their employees is very detailed and full of fatal traps for the injury victim. If you believe that a governmental entity may be involved in your case, please notify us immediately.
Eric Steinberg is a partner in The Law Offices of Lee Steinberg, P.C., one of Michigan’s most distinguished personal injury law firms. He is licensed to practice law in the State of Michigan and specializes in all areas of personal injury law, with a particular focus on automobile negligence, Michigan no-fault benefits and premises liability.