Jay tells cyclists how to protect their rights in the event of a bike crash.
I’ve written about how to choose a lawyer, but when you’re meeting with an injury attorney, what questions should you ask? If you’ve never been through the process before, how do you know what you need know – or ask? The fact that you’re thinking about this shows that you’re already on the right path! As we have heard, we need to know both the knowns and the unknowns.
“What do you need from me?”
You and your lawyer are a team, and like any successful team, you need to work together to be successful. A good trial lawyer will let you know early and often what he or she needs from you. We often hire an investigator or request records and reports, but you probably have information that we don’t (what doctors or hospitals you have been to, names of people who can help). If the lawyer doesn’t ask, be sure you ask the lawyer what you can provide.
“Who pays my medical bills?”
This is one of the most frequent – and most important – questions I get asked. You or a loved one has been hurt and you probably have a bunch of medical bills stacking up on the kitchen table, with more coming. This question has many answers depending on your situation, but an experienced attorney can walk you through each scenario, and may also be able to help you navigate getting them paid. Be sure to ask this question early – before the bills go into collections!
“How long will this take?”
This is a hard (but fair) one because I’m giving a question that doesn’t have an answer. Each case is different, and each case takes different twists and turns that we won’t see until we’ve started the journey. However, it’s important that your lawyer keeps in touch with you throughout the case – letting you know what’s happening, what to expect, and how things are going.
These are just a few of the questions you’ll want to ask a lawyer – there will be more. The most important thing to remember, though, is to maintain a dialogue throughout your case.
Sometimes it doesn’t take much to sound like a lawyer – just start throwing around words normal people don’t use, like “Interrogatories,” “Plaintiff,” or “Deposition.” We hear people toss these around in TV shows and movies. Maybe you’ve heard a lawyer use them (without taking the time to explain what they mean). Today’s post – the first in a series discussing, unraveling, and demystifying litigation – tries to explain some of the most common words and terms you may hear in a personal injury case.
- Complaint: The Complaint (more formally called a “Complaint at Law”) is a legal document that usually begins the case. In short, it’s an outline of the case. It says where the lawsuit is (which court system), identifies the Plaintiff(s) and Defendant(s), describes what happened, and asks the Court for a resolution (referred to as “Relief”).
- Defendant: This is the person being sued – the person who harmed the Plaintiff.
- Deponent: This is the person being questioned in a deposition. It could be a witness or a Party to the case.
- Deposition: Essentially, a deposition is when one or more lawyers in the case ask a witness or a Party – under oath – a bunch of questions about what happened, the injuries, or anything else related to the case. A court reporter or videographer is often present to record everything said at the deposition.
- Discovery: Discovery is the process by which the Parties, through their lawyers, learn – discover – information about what happened, why it happened, and who was involved. The goal is to get to the truth, but it is a means of establishing what evidence can be used if the case goes to trial. Though discovery can often last a long time, it’s a vital step in the path to resolving a case. The faster we can move through discovery, the faster we can try and resolve a case through settlement or trial.
- Interrogatories: Often involved in an early stage of discovery, Interrogatories are written questions each Party gives to another Party. Though they can be lengthy and ask for a lot of information, Interrogatories are a good way to discover basic facts about a case, such as names, addresses, witnesses, and medical information.
- Lien: A lien is when a person or company has a legal right to a portion of your recovery in a case. Most often, liens involve medical bills (whether owed to a doctor or hospital, or owed as a reimbursement to your health insurance). A good lawyer will handle these as part of your case, sometimes by negotiating a lower payment amount.
- Litigation: This refers to the entire process of pursuing a case or lawsuit in court – from start to finish. It includes motions, discovery, and trial.
- Mediation: Mediation is the formal process of trying to settle the case. The mediator is a neutral person, not involved in the case, who tries to bring the sides together to resolve the issues. Pre-Trial Settlement Conferences are mediations where the judge acts as the mediator.
- Motions: A Motion is the formal way of asking the Court to do something. They are usually done in writing, and often involve each Party putting its argument in writing (“briefs,” “responses,” and/or “replies”). After each side has given its written argument to the Court, the judge may have a hearing, in which the lawyers argue their case in front of the judge.
- Plaintiff: This is the person suing (filing the lawsuit) – claiming someone else hurt him or her.
- Testimony: The answers a person gives in a deposition or at trial are considered his or her testimony.
I hope this helps eliminate some of the confusion you might experience while navigating the legal system. Are there any terms or phrases I left out that you’d like me to go over?
Can a “Personal Injury Calculator” tell you how much your case is worth? The short answer is: “No.” But you deserve a more detailed answer to this question, and the related question, “How much is my injury case worth?” Let me tell you how injury cases are evaluated by trial lawyers like myself, by the insurance companies paying settlements and trial verdicts, and by the the juries that may be deciding your case.
There are three main factors to look at: 1) who’s at fault, 2) what’s the harm, and 3) who pays.
Who’s at Fault?
In other words, who is responsible for your injuries? Once we determine who – either a person or a company – is responsible, we next consider whether that person or company can be held accountable for your injuries. People have a general legal responsibility to drive safely – when they don’t, they can be held accountable for the damages they cause. Think about getting rear-ended. Chances are, the driver that read-ended you should have been paying more attention and driving more safely. If we can prove the driver was not driving safely enough, we can say the driver was at fault.
The thing to keep in mind, though, is that things are rarely black and white. When it seems like you have an “easy” case, there might be legal technicalities, state laws, or court rulings that say otherwise – all the more reason to contact an experienced trial lawyer.
As I mentioned in an earlier post, you need to trust your attorney is going to be honest with you. Any lawyer interested in helping you should be able to map out the steps he or she will take to ensure the best result possible. This includes identifying any strengths and weaknesses that arise throughout the case.
What’s the Harm?
The next question is, “What are your injuries?” This gets us back to the original question of how much your case is worth. I’ve had several clients and potential clients reference “Personal Injury Calculators” they find online. The website has you fill in some numbers (medical bills and lost wages, usually), and then it spits out a number that’s supposed to represent a fair settlement amount or range. It’s a nice concept, but it often leads to wildly inaccurate numbers – either too high or too low.
Medical bills (past and future) are a factor, but they’re certainly not the whole picture. In a recent case I handled, for example, my client was in a car stopped in construction traffic. He was killed instantly when a truck driver ignored constructions signs and rear-ended his car. That case had zero medical bills. A personal injury calculator is worthless – and insulting – in that type of situation.
Lost wages are also a factor, but not the whole story. If you miss time from work due to an injury, you can claim that as part of your case. However, using this as a main element in calculating the value of your case causes problems. A well-paid professional who makes a six-figure salary is going to have a larger number involved if she misses six months of work recovering from a knee injury. Focusing on lost wages, though, ignores the impact of a stay-at-home parent spending six months recovering from the same knee injury. A competent injury lawyer should be able to maximize the value of both cases, regardless of whether there are any lost wages. The lesson here is that each case is unique, and a trained trial lawyer will be able to recognize the needs of your particular case.
Ultimately, the question of “what’s the harm?” boils down to the impact of the injuries on your life. If you or a family member has been injured in a car crash, I’m sure you feel that your loss is more than just medical bills and lost wages. And it is! Injury victims lose meaningful time with family and friends. If you’re injured, you lose the ability to enjoy life as you choose, on your terms, whether that’s being active, social, or just pain-free. No online calculator can accurately compute this loss. Be wary of any attorney who suggests an online calculator or similar shortcut to figure out how much your case is worth. Put simply, there is no substitute for investing the time and energy needed to fight for the best result possible in your case.
This is a tough question to talk about. It shines a light on the inequalities and inefficiencies of our current insurance system, and that is because the answer to this question is generally, insurance companies pay. And which insurance company pays, and how much it pays, largely depends on the applicable insurance policies.
Many people aren’t aware that the at-fault driver in an injury case rarely pays anything in an injury settlement or verdict. In a typical car crash case, that person’s auto insurance company pays for the defense lawyer, any costs associated with the case, and any settlement or verdict amount. That’s what insurance is for.
A good attorney will be able to fully investigate the defendant and find out how much insurance coverage exists and which types of insurance might apply to your case.
What makes this a tough question is this: the harsh and sad reality is two cases with exactly the same injuries could be worth very different amounts depending on the available insurance coverage. In Illinois, the minimum required auto insurance was recently raised to $25,000. This means it’s possible a family might only be able to recover $25,000 when a drunk driver kills their loved one. However, a family whose loved one dies in a crash when a semi-truck driver falls asleep at his wheel because he’s been on the road longer than allowed would likely recover significantly more – because truck companies are required to have more insurance coverage. (Of course, even the minimum for truck drivers’ insurance is sometimes not nearly enough to compensate a victim, or a family for the loss of a loved one). Fair or not, the amount of available insurance coverage may play the largest role in evaluating how much your injury claim is worth – it’s just the way our system works, and we have to work within it.
Going back to the beginning, a personal injury calculator is a misleading – and often wrong – way to evaluate your injury case. I strongly suggest contacting and meeting with an experienced trial lawyer to discuss if you have a case. An initial review, which should be free, should result in a detailed plan of action to best protect you and your family.