It is not uncommon to be upset at you attorney after the lawsuit is filed because such a long time passes between the time the lawsuit is started and any settlement or trial. In most states, the other person's insurance company owes you no duty to settle quickly. Your case can be settled before trial or drag on long after the trial is over. The insurance companies know that you are in a hurry to settle your case, and uses that knowledge to try to get you to settle for less. Here is a partial list of some of the things that can happen to slow down your case:
Discovery
This is the insurance company's opportunity to "discover" everything about you and the accident or incident. You will get a lot of written questions to answer under oath called a Deposition. You will be expected to produce documents and medical records, plus admit or deny specific written statements put to you. You and your attorney will need to gather up all the medical records, bills and other documentation of your injuries. Some of these must be obtained in a specific way to make them admissible at trial. This often takes time and money.
Depositions
You will be asked questions under oath, with a court reporter trying up every word you say. The insurance company's lawyer will ask you in great detail about your injuries, your medical history, the accident itself and your treatment. You will likely be subjected to grilling over the smallest of details.
Motion Hearings
The insurance company lawyers may have what feels like an endless capacity to file motions and go to hearings on motions. Some of these motions are unimportant to you, but some may be critical to your case.
Mediation
Many courts are forcing lawyers to mediate or arbitrate cases prior to trial. Some courts won't even give you a trial date until you do so. Mediation is typically a settlement conference without the formalities of court. A neutral party will try to help the parties reach a middle ground. It's not usually "binding" - meaning the parties are stuck with the result-unless the parties reach an agreement and write up a settlement agreement.
Arbitration is a different breed. It's often a binding "mini-trial" of the case in front of an arbitrator or panel of judges who listen to an informal presentation of the matters involved in your case.
Trial
If your case doesn't settle, it must go to trial, where six or twelve strangers will decide what your injury is worth.
Trials are scheduled on the court's schedule, not the lawyers' schedule. Cases sometimes take years to be scheduled for trial, especially in some major urban areas. Having a case that is two or three years old before going to trial isn't unusual.
Once you have a trial, your case may not be over. There may be an appeal and further motions and hearings.
Collection Issues
You may also have difficulty collection from the insurance company or the person responsible for you injury. The insurance lawyer will have to have a check or draft issued by the company. And before they send you money, you'll be required to sign a release document and file some sort of dismissal motion. These things also delay payment. Once the money comes in, your lawyer will have to run the check through his/her trust account. If it is an out of state check, there will be another delay of a week to ten days before the funds are disbursed. And your attorney will be deducting litigation expenses such as deposition fees, transcript fees, filing fees, service of process costs, medical records costs, costs involved in documenting medical bills, costs of hiring expert witnesses, costs of paying treating doctors to testify, subpoena charges, lawyers fees, and any legally-required medical bills or liens.
Litigation can eat up a lot of time and money. Settlements after litigation can be very disappointing after spending years in battle. Sometimes it is better to settle before trial for less than to go through the process and end up with a small settlement or perhaps a bad result at trial.
Permalink
Having your deposition taken is one of the most terrifying parts of lawsuits for most people. Consider these tips for making your deposition experience less painful:
Dress for your deposition the same way you'd dress for trial. The person asking the questions is sizing you up, trying to figure out how presentable you'll be to a judge or jury.
If you need a break, ask for one. In most states, you're allowed to take a break from questioning when you need one. You should discuss the rules on this with your lawyer before the deposition begins.
Take your time. Think about the question you're asked before answering it. Pause before answering. This is not a timed event.
Don't volunteer any information. The person asking the questions in not your friend and you don not need to help him/her discover other areas to ask you questions about. Say as little as possible. Answer only the question asked and nothing more. Do not be untruthful, but do not add anything extra.
Tell the truth. Assume the person asking the question already knows the answer. Depositions aren't just to discover information, but to lock in testimony or find ways to discredit you at trial. Any inconsistency may burn you later when you're in front of a jury.
Keep your answers short. Your best possible answers are short ones, such as "Yes", "No", "I don't know", "I don't remember", and "I don't understand the question". It is best to limit your answers to the information that is specified.
Don't argue with the person asking the questions. Your attorney will be in the room with you and can make any proper legal objections to the questions.
Be careful what you say on breaks. If the other lawyer or insurance adjuster is present, anything that you say may be asked about later when you are back on the record.
If you are asked a question that calls for you to list things or give a detailed explanation, answer fully. In many cases, you may be asked to describe all your injuries or to list all the activities you can no longer perform after the accident/incident. You should list everything fully, and end your response with something like "and that is all I can think of at this time" or "and that is all I remember at this moment". Otherwise, when you add something later at trial, you might look deceptive or worse.
Be prepared to describe you injuries and pain. What kind of pain do you have? Is it constant, sharp, dull and constant? Does it ever go away? Where does it hurt? On a scale of 1 to 10, how would your rate your pain?
Be wary of the question "Are you feeling better today?" If you answer, "No", it raises the question as to whether all that medical treatment you received was reasonable or necessary. If you answer, "Yes", then perhaps your case is only a mild injury and isn't worth a lot of money. Obviously, you are feeling better today (at the deposition) than at the time the firemen were using the "Jaws of Life" to separate your body from your car prior to takingyou to the hospital. You should say so. But if you are still hurting, you need to make that clear too.
Be careful answering questions about time. If you know the exact time something occurred, say so, but be prepared to say how you know the exact time. In all other cases, use the works "approximately" or "about". Otherwise, you may look deceptive later if it turns out that some other witness or document shows a different time.
Don't guess. If you don't know the answer, say so. Don't be ashamed to admit lack of specific knowledge. If you're asked to guess, and your lawyer lets you answer, be sure to state that you're guessing or that the answer is approximate.
Always remember that the person asking the questions is not your friend, but may have a strong influence on whether the insurance company settles your case or pushes you to trial. So be polite and respectful.
Permalink
