Answers to your questions.
- How can I recover damages if injured in an accident?
There is a significant body of law which governs your right to recover for injuries you sustained in an accident.
You must first try to answer some basic questions:
- What caused the injury?
Was it an auto accident? Was it a bus, train or plane accident? Was it a swimming or boating accident? Was it a slip/fall accident? Was it a defective or dangerous product? Was it malpractice by a doctor, dentist, lawyer, Accountant or other professional? Did somebody slander or defame you or your reputation? Was the injury caused by someone’s intentional act?
- Where did the accident occur?
The law of the state will generally govern your rights to recover. If the accident occurred at work or in the course of you employment, then the workers’ compensation laws may apply.
- When did the injury occur?
All states have requirements for giving timely notice of a claim and/or when to file a lawsuit (“statute of limitations”). These limits vary greatly from state to state and by type of case. If you do not give timely notice you may forever lose your ability to obtain a recovery WARNING: IF A STATE OR COUNTY OR MUNICIPALITY MAY BE LIABLE (such as a police officer or other governmental employee or vehicle) THERE OFTEN ARE VERY SHORT TIME LIMITS TO GIVE NOTICE OF A CLAIM. Additionally, do not conclude that the “statute of limitations has expired or that its too late. There are many factors that can extend or “toll” the time limits, such as lack of knowledge of the facts and circumstances giving rise to the injury, false or misleading statements or fraud, and mental incapacity or infancy. One injury may sometimes give rise to several different rights or theories of recovery.
- Who was injured?
You and your spouse may be entitled to recover for an injury to just one of you. The family or estate of a deceased may be entitled to recover for the person’s wrongful death.
- What was the extent of the injury?
The amount of recovery you can obtain often depends on the nature of the injury, its duration (permanent or short term), your out of pocket costs (such as medical expenses, your loss of salary or wages, damage to property), the residual effects (such as an inability to engage in sports, etc.), the pain and suffering you continue to experience.
- Who was responsible for the injury?
The person you think may be responsible may be just one of many responsible. For example, if you were injured in an automobile accident, not only would the driver of the car be responsible, but the car’s owner, the driver’s employer, the manufacturer of the car and possibly the repair shop that improperly repaired the brakes that failed. Even if you think you were fully or partially responsible, you may still be able to recover in full or in part.
- What caused the injury?
- What to do in the event of an auto accident?
First, after everyone is out of danger and the medical/police assistance has been summoned, write the following information on a clean piece of paper:
- The names of the drivers of the vehicles involved?
- Did all drivers have driver’s licenses? Obtain the driver’s license numbers and addresses of the drivers!
- Did any of the driver’s appear to be under the influence of alcohol or drugs? (Write down who and why you think they were and who else observed that same thing. After the effects wear off it would be your word against theirs).
- Names and addresses of any passengers in the vehicles?
- Names and addresses of pedestrians involved in the accident?
- Did any person involved in the accident report any personal injury shortly after the accident? Who are they, and where do they live?
- Was medical assistance rendered at the scene of the accident?
- Was any one injured? If so, where and how badly?
- What was the actual location of the accident?
- Names, addresses, and telephone numbers of all witnesses!
- In what direction were the vehicles traveling just prior to the accident?
- What time of day did the accident occur?
- What were the weather conditions at the time of the accident?
- Was there anything “wrong” with the vehicles before the accident (i.e. broken headlight, bald tires or faulty brakes)?
- Was there any damage to the vehicles as a result of the accident? What parts of the vehicle were damaged?
- Who were the registered owners of the vehicles (names and addresses)?
- Were all vehicles involved in the accident insured? What are the names of the insurance companies, the policy numbers and policy limits?
- Were any of the vehicles towed from the scene of the accident?
- How did the accident occur?
- Did anyone accept responsibility for the accident (i.e. saying “it was my fault”, “I am sorry”, “I was speeding”, “I was not paying attention, “I was not wearing my glasses”, “I was distracted”, “I was tired”, “I was late for work”, etc) If so, write it down.
- Did the police come to the scene? If so, did they issue anyone a ticket? Which officers were present?
Lastly, as much basic information as possible should be gathered immediately after the accident occurred. As time passes, memories tend to fade and new versions of the accident are created. Recording the basic information on a piece paper helps later when liability for the accident begins to be examined by the police, insurance companies and attorneys.
WHO DO I CONTACT AFTER AN AUTO ACCIDENT?
Depending upon the nature of the accident and the extent of the injuries involved, a series of auto accident reports must be filed. Sometimes the reporting of an auto accident is mandatory, sometimes it is voluntary. Reports typically must be filed with three sources:
- POLICE (law enforcement):
The law of the state where the accident occurs may require a police report to be filed. Since there are many variations in state and local laws we cannot address them all. Generally if any personal injury occurs in an auto accident, a police report must be filed. A police report generally also is required when property damage exceeds a certain dollar amount (often $200 to $500). The manner of making the report also varies. Sometimes a report is not taken or the police refuse to show up at the scene. To be safe, at least a telephone call to local police should be made immediately after the accident while at the scene.
- INSURANCE COMPANY:
Most auto insurance companies require their policyholders to promptly report every auto accident. Additionally, the insurance company will want to gather all of the basic information concerning the accident for its records. Sometimes the insurance company will want your authorization to make a recorded statement concerning the accident. If the insurance company representing the other driver wants a recorded statement, we suggest that you contact an attorney before doing so. However, if your insurance company requests a recorded statement, bear in mind that failure to provide information to your insurance company in a timely manner could result in loss of coverage for the accident. You must cooperate with your insurance company at all times.
- DEPARTMENT OF MOTOR VEHICLES (“DMV”):
Some state DMVs maintain auto accident reports. The requirement for these reports differ between the various states. For example, California requires every operator of a vehicle involved in an accident to file an “SR-1″ form whenever there is an accident with personal injury or property damage in excess of $500). Typically this report must be filed within 10 days of the accident. Failure to file such a required report could lead to suspension of your driving privilege. In other words, your drivers license could be taken away from you, regardless of fault, if you do not promptly file a report with your state’s DMV.
- What is a traumatic brain injury?
A person with mild traumatic brain injury is a person who has had a traumatically induced physiological disruption of brain function. Such injury is manifested by at least one of the following symptoms:
- Loss of consciousness;
- Loss of memory for events immediately before or after the accident;
- Alteration in mental state at the time of the accident such as feeling dazed, disoriented or confused;
- Focal neurological deficits that may or may not be transient; but where the severity of the injury does not exceed the following:
- post-traumatic amnesia (PTA) not greater than 24 hours;
- after 30 minutes, an initial Glasgow Coma Scale (GCS) of 13-15; and
- loss of consciousness of approximately 30 minutes or less;
- Vomiting, dizziness or nausea. Irritability, nervousness or fatigue;
- Loss of appetite and weight loss.
WHAT CAUSES TRAUMATIC BRAIN INJURY?
Brain injury can be caused by (1) the head being struck, or (2) the head striking an object, or (3) the brain undergoing movement in the skull without any direct external trauma to the head.
WHAT HAPPENS TO THE BRAIN IN A TRAUMATIC BRAIN INJURY?
The individual brain fibers can be damaged by:
- Direct impact of the brain upon the skull caused by an object striking the skull (i.e. head hitting the windshield in an auto accident);
- The skull striking an object (i.e. falling down and hitting head on floor);
- The brain undergoing movement in the skull without direct impact to the head (i.e. “whiplash” injury in auto accident). If the brain is damaged at the point of impact, it is known as a “coup” injury. If the brain is damaged on the opposite side, it is known as a contracoup injury. Individual fibers can be damaged by stretching and tearing when the brain moves (known as shearing). These same fibers can also be damaged because of pressure changes caused by the movement of the brain in the closed skull cavity (known as cavitation).
DO YOU NEED AN IMPACT TO THE HEAD TO SUSTAIN TRAUMATIC BRAIN INJURY?
No. In the case of a rear-end automobile accident, where the head is “whipped” forward and back, this type of movement can cause a coup/contracoup injury.
- Do I have a right to my medical records?
The Medical Board frequently receives inquiries from consumers and physicians regarding patients’ rights to see and receive copies of their medical records. Any adult patient, or minor patient who by law can consent to medical treatment, or a patient representative is entitled to inspect patient records upon written request to a physician and upon payment of reasonable clerical costs to make such records available. The physician or hospital must permit the patient to view his or her records during business hours usually within five working days after receipt of the written request.The patient or patient’s representative is entitled to copies of all or any portion of his or her records that he or she has a right to inspect, upon written request to the physician along with a fee to defray the cost of copying. Physicians must provide patients with copies usually within 15 days of receipt of the request.
Copies of x-rays or tracings from electrocardiography, electroencephalography, or electromyography do not have to be provided to the patient or patient’s representative if the originals are transmitted to another health care provider upon written request and within 15 days of receipt of the request. All reasonable costs, not exceeding actual costs, may be charged to the patient or patient’s representative.
Prior to inspection or copying of records, physicians may require reasonable verification of identity, so long as this is not used oppressively or discriminatorily to frustrate or delay compliance with this law.
There are some exceptions to the above absolute requirements: A physician may refuse the minor’s representative’s request to inspect or obtain copies of the minor’s records if a physician determines in good faith that access to the patient records requested by the representative would have a detrimental effect on the physician’s professional relationship with the minor patient or the minor’s physical safety or psychological well-being.
A physician may refuse a patient’s request to see or copy his or her mental health records if the physician determines there is a substantial risk of significant adverse or detrimental consequences to the patient if such access were permitted, subject to the following conditions.
- The physician must make a written record of the request and include it in the patient’s file, noting the date of the request and explaining the physician’s reason for refusing to permit inspection or provide copies of the records, including a description of the specific adverse or detrimental consequences to the patient that the physician anticipates would occur if inspection or copying were permitted.
- The physician must permit inspection or copying of the mental health records by a physician, psychologist, marriage, family, and child counselor, or licensed clinical social worker designated by the patient. These ancillary health care providers must not then permit inspection or copying by the patient.
- The physician must inform the patient of the physician’s refusal to permit him or her to inspect or obtain copies of the requested records, and inform the patient of the right to require the physician to permit inspection by, or provide copies to, the health care professionals listed in paragraph (2).
- The physician must indicate in the mental health records of the patient whether the request was made under item (2).
A physician may prepare a summary of the record for inspection and copying by a patient, which the physician must make available to the patient within 10 working days from the date of the patient’s request. If more time is needed, the physician must notify the patient of this fact and the date that the summary will be completed, not to exceed 30 days between the request and the delivery of the summary.
If the patient specifies to the physician that he or she is interested only in certain portions of the record, the physician is obliged to include in the summary only that specific information requested. The summary must contain for each injury, illness, or episode any information included in the record relative to: chief complaint(s), findings from consultations and referrals, diagnosis (where determined), treatment plan and regimen including medications prescribed, progress of the treatment, prognosis including significant continuing problems or conditions, pertinent reports of diagnostic procedures and tests and all discharge summaries, and objective findings from the most recent physician examination, such as blood pressure, weight, and actual values from routine laboratory tests. The summary must contain a list of all current medications prescribed, including dosage, and any sensitivities or allergies to medications recorded by the physician.
- What is a slip/trip and fall accident?
A “slip/trip & fall” is the generic term for an injury which occurs when someone slips, trips or falls as a result of a dangerous or hazardous condition on someone else’s property. It includes falls as a result of water, ice, snow, poor lighting, uneven stairs, changes in flooring or the level of the floor, gaps or holes in the ground.If you are on someone else’s property and injure yourself as a result of a dangerous condition on the property, the land owner or business proprietor may be liable for your injuries. If you are a property owner and someone injures himself on your land, you may find yourself legally responsible for his or her injuries.
WHAT CONSTITUTES A DANGEROUS CONDITION OR HAZARD?
Property owners are responsible for injuries that occur as a result of a dangerous or hazardous condition on their property, which the owner knew, or should have known about. The hazard may be obvious (such as a broken stair) or hidden (like a hole). In some instances it may not be apparent. For example, when there is water or a slippery clear liquid on the floor. Generally, an owner will be considered to have knowledge of a dangerous or hazardous condition if it is permanent in nature, since the owner knew, or should have known, about the condition before the incident occurred or he actually created the dangerous condition (making improvements to the premises which later prove to be dangerous). In the case of temporary conditions (like a liquid spill), the length of time that the condition existed before the incident occurred has legal significance. If the spill occurred just before the incident, then the property owner may not be liable for your injury since the owner could not have known about the spill and would not have been able to do anything about it before the fall occurred. However, if the spill was present for some period of time before the incident, or occurs in an area subject to liquid spills, or is a recurring event, then the owner may be liable, even if the owner did not know about the spill before it occurred.
SHOULD I SEE A DOCTOR?
Yes. You should see your primary care physician or another medical doctor, since your injuries may be more severe than you think.
SHOULD I NOTIFY ANY ONE OF THE ACCIDENT?
In public places, like the shopping mall, security should be notified of the accident. They will record the occurrence and any other relevant information you provide. It is important to report the incident while you are there at the scene. If you do not report it, the landowner may question whether the accident even occurred on his premises. You should also be aware that floor or ground conditions may change, and you may need to preserve or record the condition that caused your injury (typically with a photograph or videotape). In addition, every state has a “statute of limitations” which limits the time you have to act. Some states require you to give notice to certain types of landowners, such as municipalities, within as little as 30 to 90 days of the incident. If you do not give the required notice, or sometimes file a claim or lawsuit within the time set by law of the state in which the injury occurred, you lose your ability to recover from the landowner. If your injuries turn out to be more severe than they first appeared, your case will suffer. If you have a valid claim against the landowner for your injuries, delay may be fatal to your claim. You should act quickly to evaluate your options and report the slip and fall immediately.
WHAT SHOULD I DO IMMEDIATELY AFTER THE INCIDENT?
Inspect the area where you fell. Try to determine what caused you to fall? Did anyone see you fall? Write down the names, addresses and phone numbers of anyone in the vicinity where the incident occurred on a clean piece of paper. Include all witness who saw you fall and others who were there after the incident. Even if someone did not see you fall, he or she could, if necessary, describe your pain and the conditions of the floor, lighting, etc. immediately after you fell. If the incident occurred in a store or place of business, speak with the store security, the manager or supervisor of the store or any other managers available. Request that they record of the incident, and get a copy of anything prepared by them. Make sure to take photographs of the location where the accident occurred, regardless of whether the condition that caused your fall is permanent, or semi-permanent. If you don’t have a camera handy, buy a disposable camera for $5 to $10. Many stores carry them. Be aware that even “permanent conditions” will be repaired if there is a strong potential for a lawsuit. In many states, evidence that the owner changed or repaired the dangerous condition is not admissible.
- What constitutes a defective product?
A defective product is one that causes some injury or damage to person as a result of a defect in the product or its labeling or the way the product was used. The manufacturer, and others involved in the chain of commerce are often liable for injuries caused by defective products.All states allow some form of recovery to persons injured by defective products. Product liability cases range from the obvious (an auto without a seat belt) to the not so obvious (injury from exposure to a drug).
WHAT IS THE BASIS FOR PRODUCT LIABILITY?
While the laws applicable to defective product cases vary from state to state, there are three theories common to all jurisdictions which may form the basis of a successful product liability case. They are: (1) Manufacturing defect. In this type of case, the injury is caused by a defect in the manufacture of the product; (2) Design defect. In this case the injury was caused by a poor design of the product; and, (3) Failure to warn. In this situation, the manufacturer knew of the dangerous propensity of the product and failed to warn the public of this potential hazard. In many instances, the manufacturers are not willing to settle at the earliest opportunity because they feel that the product was not defective in any manner. Rather than admit the product was defective the manufacturer will pay less money in claims than recall the dangerous product which in many instances cost more than paying the claims themselves. In order to prove such a case, expert opinion is required and will be very costly. As such, if the injury is small, you may have difficulty finding a lawyer to take the case since these cases can get very expensive.
If you or your family has been injured by a defective product, it is imperative that you consult an attorney immediately.
- Do I have a malpractice case?
Malpractice may arise from a professional’s misconduct or failure to use the necessary care, skill or diligence in the performance of the professional’s duties which resultingly causes harm or injury to another. Malpractice typically occurs if a professional fails to exercise the requisite care or skill as the average member of the profession in the given community in which he practices. Performance is based upon the standard of care for the professional in the community.In order for malpractice to be actionable, the injury, loss or damage must be suffered by the person who retained the professional’s services, or those otherwise entitled to benefit from or rely upon the services of the professional. The professional owes a fiduciary duty to the person who hired him to act in the best interests of the client or patient and must suborn his own interests to that of his client or patient.
WHO CAN COMMIT MALPRACTICE?
Any professional who renders services upon which another relies upon can commit malpractice. Often, the professional is licensed or regulated by the state. Accountants, attorneys, chiropractors, dentists, physicians, psychologists and therapists are typically the professionals owing the above identified duty. When others engage in malpractice, the action is not specifically called malpractice, but negligence. Only those who hold themselves out as having special skills or abilities are held accountable for malpractice.
HOW DO I RECOVER DAMAGES FOR MALPRACTICE?
The first inquiry is what the professional did or failed to do? Would a similar professional in the community have committed the same act or omission? Is the injury, loss or damage as a result of the act or omission? Depending on your response to these basic questions, there may have been actionable malpractice. The individual client or patient is rarely in a position to know whether or not there was malpractice, and the professional who performed the service may be unwilling to admit fault or may not even know he is at fault. Often, an attorney has to hire an expert or consultant to help assess whether or not there was malpractice.
- Did the insurance company engage in unfair claims settlement practices?
If an insurance company fails or refuses to honor its contract of insurance and pay a valid claim, you may have the right to bring a civil action for damages against the insurance company for a breach of the insurance contract. This is also considered a tort claim seeking damages based upon the insurer’s “bad faith” handling of the claim. In every contract there is an implied covenant of good faith and fair dealing. If the insurance carrier fails to act in good faith, the insured may file a lawsuit seeking recovery for general damages, such as pain and suffering as well as punitive damages to punish the insurance company for its bad actions.DOES THIS APPLY ONLY TO CERTAIN TYPES OF INSURANCE CLAIMS?
No. The denial of any insurance claim (including claims under policies covering auto, disability, life, health and property) may subject the insurer to damages that exceed the amount the company should have paid under the insurance policy in a civil action. The insurance company must efficiently investigate the claim, and, if it decides to deny the claim, it must substantiate the decision and provide it in writing.
DO DAMAGES FOR AN INSURER’S BAD FAITH GO BEYOND WHAT I WOULD BE ENTITLED TO UNDER THE CONTRACT?
In addition to what the insurer owes you under the policy, if the denial can be shown to have been unreasonable, you might also recover “consequential damages” (money you had to pay out-of-pocket because of the denial), and “extra-contractual damages” to compensate for mental and emotional distress. In some cases, “punitive” or “exemplary damages” designed to punish the insurer and deter it and its employees from wrongfully denying similar claims in the future may also be awarded. However, a legitimate dispute or disagreement over coverage or benefits will likely not give rise to a bad faith claim. In order to recover punitive damages, one must show that the insurer acted with oppression, fraud or malice, and, that the conduct was despicable.
WHAT OBLIGATION DOES THE INSURANCE COMPANY OWE TO ME REGARDING MY CLAIM?
In most states your insurance company has a duty to handle your claim promptly, reasonably and in good faith. The duty of “good faith and fair dealing” basically means that your insurance company must:
- Adjust your claim (either pay it or deny it) within a reasonably prompt time.
- Cooperate with you regarding the claim (timely respond to your letters and phone calls).
- Inform you in writing precisely why it is denying the claim specifying each contractual term or provision upon which it relies.
- Attempt to find a basis to pay the claim rather than find reasons to deny it.
- Treat you fairly.
- Should I file a lawsuit?
A lawsuit is a civil action brought in a court of law where one party sues another for monetary damages or loss of property. The lawsuit can be used to stop or restrain another from harming himself or another person either physically or financially. The person bringing the lawsuit is called the “plaintiff” and the person who is being sued is called the “defendant”. Any person, business, government or other entity can file a lawsuit for damages caused by another party.A lawsuit is one way that people and companies can resolve disputes arising out of an infinite variety of factual circumstances. CAUTION: Always consult an attorney before deciding to file a lawsuit. The judicial system in many states is designed to punish individuals/entities for filing false or frivolous lawsuits. An attorney will be able to advise you whether there is a basis to file a lawsuit.
ARE LAWSUITS DIFFERENT FROM CRIMINAL CASES?
Yes. Lawsuits are civil proceedings, as distinguished from criminal proceedings. In criminal proceedings the state or federal government is seeking, on behalf of the people, to punish a person(s), businesses or other wrongdoers who engage in illegal conduct in violation of a criminal statute. If the person accused of the crime or offense is found “guilty”, he would be subject to possible fine or imprisonment. In a civil case, the defendant is found “liable” or “at fault”, and would be subject to a monetary judgment or form of restraint by way of court order.
ARE LAWSUITS DIFFERENT FROM ARBITRATION PROCEEDINGS?
Yes. Lawsuits are also different from methods of alternate dispute resolution such as arbitration in which a private arbitrator (usually a retired judge) makes the decision. A mediation is a type of structured meeting with the parties and an independent individual (sometimes a judge or attorney) who assists the parties at reaching a settlement agreement.
An arbitration is different than a mediation, although both can be ordered by a court. If the court orders the matter to arbitration or mediation, the hearing will usually be “non-binding” on the parties, which means that any party can have their day in court. However, an arbitration can also be “binding”. For example, If you file a claim for uninsured motorist benefits under your insurance policy, the dispute is resolved by binding arbitration as outlined in your insurance contract.
HOW LONG WILL THE LAWSUIT TAKE TO RESOLVE?
Every lawsuit is different and the amount of time will vary depending on the complexity of the issues in the case. Typically, if the case goes to trial, it will take approximately 2-3 years from the date of injury/dispute to resolve by way of trial. A trial is the final result of a lawsuit. There is usually only one winner and one loser. The costs associated with a lawsuit are expensive and the amount of time you will invest is substantial. If you are thinking about whether to file a lawsuit, always consult an attorney and make clear in your mind that this is the process you want to engage in before doing so.
- What is arbitration/mediation?
WHAT IS ARBITRATION?Arbitration is a process in which one or more arbitrators hear evidence from the parties to a dispute and the arbitrator (usually a retired judge) then makes an award in favor of one of the parties. Arbitration is a very abbreviated form of trial and is final. The Award cannot be reviewed by a court, and there is no appeal. Arbitration is a substitute for trial and greatly reduces the costs, time and attorneys fees associated with litigation. Arbitration is an adversarial process resulting in one winner and one loser.
WHAT IS A BINDING ARBITRATION?
An arbitration is binding on the parties if they agree to have the matter heard by way of arbitration rather than trial. The arbitration agreement must be in writing and state that the parties waive any right to trial and appeal. The parties to an arbitration agreement can, however, mutually agree to withdraw the case from arbitration at any time before an Award is issued by the arbitrator. If they withdraw the case the arbitrator loses the authority to decide the case.
WHAT IS NON-BINDING ARBITRATION?
It is a process that resembles arbitration in that the parties agree to submit a dispute to an arbitrator, but agree that the Award is merely advisory. The parties need not follow it and each party is free to pursue an independent action, such as a lawsuit in a court of law. In California, the court can order a case to non-binding arbitration if the court believes the amount ultimately recovered would be less than $50,000. The case is then heard by a retired judge or practicing lawyer who makes an award as to the merits and value of the case. Either party may ask for a “Trial de Novo” (new trial) and have the case restored to the civil active list for trial if the award is not satisfactory to that party for whatever reason.
WHAT IS MEDIATION?
It is a process in which a neutral person facilitates communication between the parties in an effort to assist them in reaching a mutually acceptable settlement agreement. Unlike arbitration, mediation is not an adversarial process. The parties have agreed to mediate a dispute in an effort to settle the case and come to the table to negotiate.
WILL A MEDIATOR DECIDE WHO WINS?
No. Mediators do not decide cases. They have no power to impose a resolution of the dispute on the parties. They can offer different perspectives, help to articulate your priorities, frame the dispute, and assist the parties in negotiating a settlement. A mediator can only facilitate a settlement and cannot tell you what to agree to.
WHEN CAN YOU MEDIATE?
You can mediate whenever you have a dispute that could interfere with a business or personal relationship. For instance, mediation can be an alternative to a civil lawsuit or arbitration for both businesses and individuals. Couples who are divorcing often choose mediation as a more civilized way of arranging their affairs than an adversarial trial. Likewise, businesses or individuals who have begun a lawsuit can mediate at any time in an effort to resolve the pending lawsuit.
- Should I go to small claims court?
WHAT IS SMALL CLAIMS COURT?Small Claims Courts are specially designed to handle disputes between individuals or businesses where the amount of money involved is relatively small, in many cases no more than $5,000. The precise limit depends on the local laws in each jurisdiction. In some states, Small Claims Courts can also handle minor disputes between individuals and a government agency. In small cases where an attorney is not able to represent you, Small Claims Court is ideal for disputes where the insurance company is not willing to pay or is “low balling” you during settlement negotiations.
HOW DO I FILE IN SMALL CLAIMS COURT?
Small Claims Courts can handle many disputes including, but not limited to, minor personal injury matters, property damage disputes, lost or stolen property claims, contract disputes and other similar minor disputes. A Small Claims Court cannot enjoin a party to prevent them from doing something or order a party to do something that it agreed to perform, basically, any type of case where you are seeking “equitable”, as opposed to “legal”, remedies. The first step is to go to your local courthouse and obtain the necessary documents to file with the court.
WHAT HAPPENS AFTER I FILE THE COMPLAINT?
Once the documents have been properly completed, you will have to pay a filing fee (usually no more than $35). The clerk of the court assigns a case number and trial date. Thereafter, you are required to serve the defendant with the summons. The county marshal will make service for a small fee. Once you have served the defendant, prepare for the hearing by organizing your evidence. Bring all documents, photos or other evidence to the hearing.
The Judge will ask you to present your case first. Speak quickly and to the point. If the Judge asks you a question, answer it in a responsive manner. Once you have presented all of your testimony and evidence, the defendant gets his turn to rebut your testimony and provide his evidence. Once the matter is argued, the Judge will render a verdict. If you win, you will have a judgment against the defendant, including costs of filing and service, upon which you can execute on his assets or insurance policies. The process is relatively simple, however, different courts have different rules and you must observe them, otherwise, your case could be thrown out and you would be required to start all over again.
Small Claims Courts provides a quick and relatively cost free opportunity to have your case heard within a very short period of time. You are not allowed to have an attorney represent you at the hearing, although, if you know an attorney who is willing to guide you, don’t be afraid to ask him for assistance. Likewise, the insurance company is not allowed to hire an attorney to represent the defendant and have that attorney appear at the trial. If the defendant does not show, you win.
- Do I need a lawyer?
It is recommended that you hire a lawyer for any legal matter. The lawyer has been trained in the legal process and has implicit knowledge and understanding of the legal process, procedures and law regarding your case. It is akin to performing surgery on yourself. Hiring a lawyer will not cause you to relinquish the right to control your decision to settle the case or who to sue for that matter. The lawyer will help you to consider whether to file a lawsuit, and, once filed how to obtain the best result. The lawyer works for you and your best interests.A lawyer will assist and advise you with the following:
- The precise nature of the claim.
- The likely measure of damages or other relief.
- The objective and reasonableness factors. Sometimes people want to do harm by filing a lawsuit. This is not a proper objective.
- The available evidence to prove the claim, and what is still needed.
- The difficulty and likelihood of gathering additional important evidence.
- The cost of gathering evidence, preparing the case, and conducting a trial.
- Whether the party should continue litigation or settle the case.
- How credible (and sometimes likeable) is the party or witnesses in affecting the outcome of the case.
- Who the adversary should be.
- How credible and likeable the adversary is. For example, who wants to sue Disneyland?!
- Whether the adversary might have any possible claims against you.
- The importance of the case as “precedent” or adverse publicity both for the plaintiff and the defendant.
- What the adversary typically does when sued. For example, will the insurance company settle or litigate the case to death.
- Whether, if the plaintiff is successful, the adversary (in contingency fee cases) is able to able to pay the judgment. For example, if you are injured by a penniless person who has no insurance, even if you might have a “slam dunk” case against the person, unless there is someone else also responsible, who will you collect from?
- Whether there may be a “deep pocket” who has responsibility for some or all of the loss.
- Whether the client will be able to pay the fees and expenses of the litigation (in non-contingency cases).
- The possibility of informal settlement on reasonable terms.
- The length of time it will take to go to trial, and the quality and attitude of the jury or judges.
- Whether it makes sense to use alternative dispute resolution (arbitration or mediation) to resolve the controversy.
- The ultimate value of your claim based upon his education, background and experience.
A good lawyer will honestly review the facts of your case and advise you of the real strengths and weaknesses of your case and the chances for success. If you don’t agree with his opinion, you are free to get a second opinion or hire another lawyer.
- If I hire a lawyer how much will it cost?
Most attorneys do not charge for an initial consultation. The lawyer will usually meet with you to discuss your case free of charge and spend approximately one hour discussing the case with you. If your case involves a personal injury where you have been injured by the negligence of another, the case will usually be taken by the attorney on a “contingency” basis. This means that the attorney will not charge you or take any fee until he has made a recovery for you. If he is successful in making a recovery, the attorney will then charge you a fee (anywhere from 15-50%, depending upon the attorney, the length of the case and state law); and, charge all of the costs advanced on your behalf once the case is settled. If the attorney does not make a recovery, there will be no charge.If your cases deals with a business dispute, divorce, insurance coverage, contracts, real estate or some other matter where there is not going to be the proverbial “pot of gold at the end of the rainbow”, then the lawyer will charge you an hourly fee. The hourly fee is based on the type of case and the experience of the attorney you hire. All fees and costs will be billed monthly and you are required to pay the attorney’s bill within 30 days.
In cases of bankruptcy, probate or workers’ compensation, the court usually fixes the fee the attorney will recover for his work on the case.
- What is a contingency fee?
Contingency fees are essential to this country’s system of justice because, unlike most European countries, the United States permits average citizens to hire good attorneys.The client has the benefit of securing the services of the “best lawyer.” In the event the case turns unsuccessful than expected at the outset, the burden, or risk is carried by the lawyer and not by the client.
Contingency fees, or percentage fees, are paid at the conclusion of a case, and only if there is a recovery.
The contingency fee agreement allows a lawyer to undertake representation of a plaintiff with the understanding that a fee is dependant on the outcome of the case. The attorney finances the legislation and is reimbursed for his or her services only if he or she wins the case.
Contingency fee agreements are used extensively in the United States, particularly by plaintiffs in lawsuits involving personal injury who might not have the means to pay the costs associated with a legal action on their own.
The contingency fee is the average person’s only way to hire a lawyer and for that reason major institutions have worked hard to limit contingency fees in order to limit the ability of the average public to assert its legal rights.
Under a contingency fee contract, the attorney’s fee is a percentage of the recovery, generally between 33% and 50%, but there is nothing sacred about these numbers, although many people are so familiar with these percentages that they are accepted as gospel. In more complicated and difficult cases, the percentages will be higher. This type of fee agreement is used commonly, though not exclusively, by those who have suffered personal injury, property loss or serious damage to their business and by families who have suffered the death of a family member.
Some helpful links:
- Shawn Steel Articles
- California Department of Insurance
- California Department of Motor Vehicles
- California Highway Patrol
- National Highway Traffic Safety Administration
- California Board of Chiropractic Examiners
- Kaiser Permanente
- California Chiropractic Association
- Kelley Blue Book
- Bureau of Automotive Repair
- The State Bar of California