Understand what's really going on when the insurance adjuster asks you to attend an independent medical examination as part of your car accident case. The at-fault driver's car insurance company gets one chance to examine you and build their case against the nature and severity of your car accident injuries. If they send you to someone who doesn't see things from their perspective, they will have wasted their only chance to create an expert witness against you.
So, the practice for car insurance companies and defendants is to hire the same doctors over and over to do these examinations and—guess what?—the doctors usually tell the defense (the ones that hired and paid them) something that they want to hear. Then the doctor will appear at trial as a witness against you. Or, at the least, the doctor's report will be used as a weapon against you in settlement negotiations.
After examining you and reviewing your medical records, the defense doctor will probably conclude something along the lines of:
Get the details on how an IME works in a personal injury case.
The independent medical examination can be a stressful part of the car accident claim process, but there are ways to level the playing ground and take some measure of control over this phase of things.
If you can afford it, hire a nurse or other medical professional to accompany you to the examination. This person will be able to judge the legitimacy and fairness of the exam, and can act as a witness in court if the examining doctor doesn't accurately report the results of your exam, or doesn't tell "the whole story."
If you can't afford to take a medical professional with you, it's a good idea to take your spouse, your partner, or a friend with you. If there's a dispute in court about what happened at the IME, your companion can testify to what they observed.
The exam will usually begin with the physician "taking a history" by asking:
Bring to the examination a written statement that you (and your lawyer, if you have one) have prepared, and give it to the physician in response to these questions. That way, there can be no mistake about what you told the doctor, because it's in writing.
The IME doctor will be looking for signs that you're exaggerating your symptoms. In the IME report, the doctor may comment about such things as how well you were able to get around the room or get on and off the examining table. The point here is this: Be aware that you're under observation at all times during the IME.
As soon as the examination is complete, after you leave the doctor's office, make written notes of what happened and give them to your lawyer, if you have one. Include all relevant times, such as:
Make note also of what was said and done, and anything else you can recall about the examination.
Your lawyer will be able to use your notes to cross-examine the doctor in a car accident deposition or in court. Your lawyer's goal here will be to show how little time was spent with you during the IME, especially compared to the time your treating doctor(s) spent with seeing, treating, and following up with you over the course of your recovery from your car accident injuries.
If your car insurance claim or lawsuit has proceeded to the point where the insurance adjuster is talking about an independent medical examination, hopefully you've already got a car accident lawyer on your side. If not, now's the time to consider hiring one. Learn more about when you might need a lawyer for a car accident case and get in-depth information on working with a personal injury lawyer.
]]>You usually have the option of going to small claims court to try to get compensation after a car accident. That means you can present your argument that the person you're suing (the "defendant") was at fault for the car accident, and ask the small claims judge to compensate you for:
We'll cover the pros and cons of taking a car accident case to small claims court a little later on. But the biggest consideration is usually this: You need to have a firm sense of the dollar value of all your car-accident related losses, and of what you'd be willing to accept to resolve your case, because the total amount you ask the small claims judge to award you (and the amount you can receive) can't exceed the small claims court dollar limit.
Which brings us to our next question...
As we just mentioned, the simple answer here is that the amount you can win in a small claims court car accident case is usually capped by the small claims dollar limit in your state. It's important to check the latest court rules to be certain of the current limit.
If the amount of your car accident-related losses exceeds the small claims court limit, you'll need to either:
A few states have carved out special dollar limit rules for car accident cases. For example, the normal small claims cap in Massachusetts is $7,000, but small claims judges in that state have leeway to exceed that amount in cases over property damage resulting from a car accident.
You'll find a link to specifics on the small claims limit in your state in the "Next Steps" section at the end of this article.
We've mentioned it before, but it bears repeating: The key issue here is whether the total amount of your car accident-related losses (and/or the amount of compensation you'd be satisfied with) falls below the small claims court dollar limit in your state.
Aside from that all-important consideration, let's look at a few pros and cons of taking a car accident case to small claims court (as opposed to going the usual route of a standard car accident lawsuit in civil court).
Pros of Small Claims Court
Cons of Small Claims Court
It's very easy. The details vary slightly from court to court, but typically the process involves:
Every car accident case consists of two main questions, or issues:
In the language of the law, the first issue is usually called "liability"; the second is called "damages", and you have to prove both to win your case. If you don't prove liability, you'll lose, even if you've proven that you suffered damages. If you prove liability but can't prove that you had any damages, you won't be awarded anything. So, you need to prepare an argument for both of these key issues. For example:
Get more tips on evidence to collect after a car accident.
Small claims court judges love it when citizens come to court prepared. It's a great way to gain the judge's respect and be on your way to a judgment in your favor.
If the other driver has car insurance, their insurance company will probably pay the judgment. Their only other option is to appeal the case.
If the other driver is uninsured, you may have trouble collecting the judgment. If you have a judgment and the other driver won't pay it voluntarily, you'll need to learn what procedures your court has to help collect the judgment. Possibilities include attaching or "garnishing" the wages of the other driver and attaching their bank account or other assets. Learn more: Can You Collect Your Judgment?
Absolutely. With just a small filing fee, a small fee to have the court papers served on the other driver and a little effort, you can have your day in court.
In small claims court, the judge hears what each side has to say and then decides the case, sometimes on the spot. So if you can't settle your car accident claim with the insurance company, don't be afraid to go to small claims court.
Get tips on representing yourself in court.
Now that you understand the basics of how a car accident claim might work in small claims court, you can find more in-depth information on the process (and the rules) for these kinds of cases:
If you've read this far and you're starting to question whether your car accident case might be worth more than the small claims limit in your state, or you're wondering whether you'd be comfortable handling your own case, it might make sense to discuss your situation with a lawyer. Learn more about how a lawyer can help with your car accident claim, and get tips on finding the right injury lawyer for you and your case.
]]>We start by explaining the OA basics—what it is and how often it develops after an injury. From there, we’ll talk about the symptoms to watch for and how OA is diagnosed. Finally, we cover the proof you’ll need to collect damages for your OA, and the witnesses who’ll probably have to offer that proof.
Osteoarthritis is the medical term for inflammation in and around joints that typically results from damage to the joint cartilage. Cartilage is smooth tissue that’s meant to cushion your joints, preventing the bones from rubbing against each other. Damage sometimes is caused by an injury, though a variety of other conditions can cause it, too.
OA can happen in any joint, but it’s commonly found in the hands, shoulders, knees, hips, and spine. Unfortunately, there’s no cure for OA. Treatments sometimes help to relieve the symptoms, but it’s a progressive condition that often slowly gets worse over time.
When car accidents are involved, we’re concerned with two types of OA.
Post-traumatic OA. This form of OA develops after some injury (post-trauma) involving a joint. Suppose, for instance, that you injure your knee cartilage in a car accident. It’s possible that OA will develop later and that you’ll begin to experience symptoms. Car accidents are known to be a cause of post-traumatic OA.
Aggravation of preexisting OA. As with post-traumatic OA, auto accidents can trigger aggravation of preexisting OA. Say you injured your knee playing tennis years ago. Over time, OA developed in the joint. Some time later, you reinjured the knee in a car accident. After the accident, your OA symptoms became much more frequent and severe. You can argue that the car accident aggravated your preexisting OA.
Estimates vary, but the Centers for Disease Control report that more than 32 million people have OA. Before age 45, osteoarthritis is more common in men than in women. From age 45 on, women experience OA more often than men. Because it tends to be an age-related condition, most people who are older than 60 have OA, at least to some degree.
Studies indicate that post-traumatic OA accounts for roughly 12% of all OA cases. Between 20% and 50% of patients with a joint injury will develop post-traumatic OA.
Post-traumatic OA doesn’t show up right away after a car accident. Unless an injury tears it from the joint surface, the protective cartilage will take time to wear down. How long it takes will depend on a number of factors, such as the severity of the injury, whether there’s preexisting arthritis in the joint, the person’s age and level of activity, and more.
For some, symptoms begin less than a year after being injured. In others, symptom onset might be delayed for a decade or longer. There’s no way to predict, with certainty, how long it might take. When an injury aggravates preexisting OA, symptoms can appear more quickly.
In post-traumatic OA, early symptoms are likely to include mild to moderate pain and stiffness in the injured joint, particularly after a time of inactivity—like first thing in the morning. Symptoms usually increase in frequency, intensity, and duration over time. A lucky few experience mild or intermittent symptoms, or perhaps no symptoms at all.
Typical symptoms of post-traumatic OA include:
Osteoarthritis is usually diagnosed through a combination of:
Your doctor will take a history to learn how the underlying injury happened, to find out about any other injuries or conditions that might explain your symptoms, and to rule out other possible causes of pain and inflammation. A physical exam can reveal symptoms such as pain, swelling, redness, limited range of motion, and more.
X-rays and CAT scans are the most common studies used to diagnose OA. They can show narrowing of the joint space, tears and other wear to your cartilage, bone spurs, and other signs of injuries that are consistent with OA.
Your history, symptoms, film studies, or other factors might prompt the doctor to do other tests. The intent is to rule out causes of pain and inflammation other than a traumatic injury. Gout, infection, autoimmune disorders, and genetic predisposition are sometimes culprits.
Making a claim for OA—whether post-traumatic or preexisting and aggravated by the collision—is much like making a claim for any other car accident injuries. You’ll need to prove that:
Osteoarthritis cases don’t usually raise special problems in proving negligence or injury. But you can expect a fight over the last factor, which lawyers refer to as “causation.” To be clear, the issue usually isn't whether you suffered an injury because of the accident. The issue is whether the injury you suffered caused (or will in the future cause) traumatic arthritis or aggravation of your preexisting OA.
The other side will be looking for any evidence they can find to point to something else—anything else—as the cause of your arthritis or worsened symptoms. Do you lift weights, run, play tennis, go hiking, or engage in other strenuous activities? Did you play sports when you were younger? Do you have a history of inflammatory disease or autoimmune disorders in your family? Have you been in previous car accidents? Does your job involve repetitive motions?
The other side’s goal isn’t to figure out what caused your OA. It’s to come up with as many reasons as possible why the cause might not be the car accident you think is to blame. Remember: The burden is on you to prove it’s more likely true than not true that the accident caused your OA or aggravated your preexisting OA. The other side doesn’t have to prove anything.
How do you counter this attack?
Your lawyer (yes, you should hire a lawyer) will have to work closely with your treating doctor and, if applicable, your expert medical witnesses. The doctor will need to testify regarding all the medical proof that backs up your claims—your medical history, mechanism of injury, what your physical exams showed, your X-rays and CAT scans, and anything else that supports causation.
Your medical witnesses must be rock solid. If they waver, they’ll create openings for the other side to poke holes in your evidence.
To illustrate the damages you can collect, let’s assume that you break your left shin bone in a car accident that was the other driver’s fault. Your orthopedic surgeon tells you that because of where and how the bone was broken, you’ll probably develop post-traumatic OA in your knee.
Typical car accident damages. In a car accident case like this one, you’re entitled to collect damages for both past and future:
Future damages are the key in OA cases. Because OA takes time to develop after an injury, most of the damages related to OA are likely to come in the future, after you’ve settled your case or tried it to a jury. How do you collect damages for those future injuries?
You must be able to prove:
Doctors and other expert witnesses. You can speak to the pain, emotional distress, and disability you’ve already experienced and how those things will impact your life in the future. But it will be up to your doctor and other experts to do most of the heavy lifting, evidence-wise. You’ll need medical testimony to explain your likely future medical problems and symptoms, along with the specific care and treatment you’ll need.
If your anticipated future care needs are extensive, expert witnesses like a care planner and an economist will have to explain your future medical expenses and reduce them to present-day dollars. Those experts don’t come cheap. Whether it makes financial sense to hire them will be a judgment call you and your lawyer will have to make, based on the expected total value of your case.
As should be clear by now, when OA is a significant component of your car accident injuries and damages, your case is likely to be both factually and legally complex. Unless you understand causation and how to defend attacks against it, odds are you’re in over your head. You need experienced legal help on your side.
A car accident lawyer is familiar with the issues you’ll face when OA is part of your case, and will give you the best chance for a fair outcome. If you’re ready to move forward, here’s how to find an attorney in your area who’s right for you.
Here’s a brief overview of what to expect when the insurance claims and lawsuits start landing on your doorstep.
This article assumes that you were involved in a DUI or DWI car wreck. Much of what we discuss here will take place against the backdrop of pending or potential criminal charges, especially within the first several months after the accident. You should be represented by experienced legal counsel on those charges, and your counsel should advise you on the matters we cover here, too.
Why is this important? Remember the warning: Anything you say can be used against you in your criminal case. That’s true for things you say in connection with a car accident insurance claim or a civil lawsuit, too. Here’s how to find and work with a criminal defense lawyer on your DUI or DWI case.
The short answer is: Yes, you need to report the accident to your auto insurance company. But if you have criminal charges pending, don’t do it yourself. Ask your lawyer to contact your auto insurer and make the report. If you’re not facing criminal charges (and you’re confident that you won’t be), you can call your insurance agent or report the collision using your insurance company’s accident reporting webpage or mobile app.
Don’t wait until someone makes a claim against you to notify your insurer. Your insurance policy almost certainly requires that you report any accident promptly. If you’re worried about the company finding out that you were DUI or DWI, don’t. They’ll find out about it eventually.
If there’s a lengthy delay between the date of the accident and the date a claim gets filed, and if you haven’t already reported the accident, the insurance company might argue that your failure to provide timely notice was a “breach,” or violation, of the insurance policy. When you breach the policy, the insurance company can use your breach as a reason to deny coverage. That’s a fight you don’t need.
If someone you hurt in the accident decides to bring an insurance claim against you, your first clue might come in the form of a claim notice letter. Typically, this letter will be short and to the point, telling you that a claim for personal injuries or property damage is being brought against you. Chances are there won’t be much detail about injuries, nor will there be a demand for a specific settlement amount.
The letter might tell you to pass it along to your auto insurer, and that’s a good idea. You can deliver it to your agent or send an electronic copy via email or the insurance company’s claims webpage. Again, don’t delay. If criminal charges are pending, simply send it along without comment or forward it through your lawyer.
What should you do if you don’t have auto insurance? Your best bet will be to get advice from an experienced car accident defense lawyer. The person who’s bringing the claim against you will be represented by counsel. Without legal help, you’ll be fighting a losing battle.
If the letter comes from a lawyer, it might invite you to contact the lawyer’s office to discuss the claim or a settlement. Don’t take them up on that invitation. Nothing you might say will help you, and the claim isn’t going to settle at that point. In any event, your insurance policy probably doesn’t let you settle a claim without the insurer’s agreement.
A civil lawsuit starts when the person you injured or whose property you damaged (the “plaintiff”) files a document—usually called a “complaint”—in court. Typically within 30 to 60 days after the complaint is filed, you (the “defendant”) will be “served with process.” A sheriff’s deputy or other process server will hand-deliver a copy of the complaint and some other documents to you, usually at your home. This is likely to be your first indication that you’ve been sued.
As soon as you’re served, you should get the complaint to your insurance company. If you don’t have auto insurance, then take it to your lawyer’s office. Do this right away. Here’s why.
Once you’ve been served, you’ve got a limited amount of time (usually around 30 days, but it varies based on state law) to respond to the lawsuit. You do this by filing either an answer to the complaint, or a motion to dismiss the complaint. If you don’t respond to the complaint in time, the plaintiff can ask the court to enter a default judgment against you, ordering you to pay the plaintiff money damages.
Probably so. When you buy auto insurance, your liability coverage does a couple of important things. First, it pays for damages you cause to others in a covered accident, up to the limits of your policy. Second, it covers the costs to defend you in court—including attorney’s fees—if you get sued. The insurance company normally hires and pays a local attorney who has experience defending car accident cases.
As a rule, insurance covers losses caused by negligence—carelessness—but not losses caused by intentional wrongdoing. This distinction probably won’t cause your insurer to deny coverage for your DUI or DWI accident. While you intended to drink and you intended to drive, you didn’t intend to get into a wreck. In most states, insurance claims against you should be covered.
Your insurance company might send you something called a “reservation of rights” letter. In essence, the letter says “We’re going to investigate this claim and we might provide you with a defense, but we reserve the right to deny coverage later if we determine that the accident wasn’t covered.”
It’s a way for the insurance company to cover its tracks if it later comes up with a reason not to cover you. If you get a reservation of rights letter (or if the carrier simply denies coverage for the claim) you should consult with an experienced car accident defense lawyer immediately.
When you drive drunk and cause a plaintiff serious or catastrophic injuries, their lawsuit is likely to ask for extraordinarily high damages. This opens you up to the possibility of an excess judgment—a damages verdict that exceeds your auto insurance policy limits. Needless to say, that sort of verdict could prove financially disastrous. Here's an example.
Suppose that while driving drunk, you slammed into the driver's side of another car after running a red light. The other driver suffered multiple fractures, internal injuries, and a closed head injury. Your insurance company estimates that the value of the plaintiff's claim is between $750,000 and $1,000,000. Your auto liability policy has a bodily injury limit of $100,000. How is this claim likely to play out?
Your insurer will see no point in fighting the case on your behalf, and will quickly offer to pay your policy limits to settle the case. The plaintiff's lawyer will run an asset check to see if you have other property that might be seized to satisfy a larger judgment. If not, the plaintiff likely will take the $100,000 policy proceeds and settle. But if you do, the plaintiff will continue with the case.
When the plaintiff wins at trial (which they will), and the verdict exceeds your policy limit (which it will), your insurer will pay the $100,000 policy limit to the plaintiff and be done with you. The plaintiff's lawyer will begin collection activity to seize your assets, liquidate them, and apply the proceeds to the amount of the judgment. To prevent this from happening, your only viable option is likely to be bankruptcy.
In many car accident claims, especially those involving DUI or DWI, the plaintiff will ask for both compensatory damages and punitive damages. Compensatory damages are for things like medical bills, lost wages, pain and suffering, and emotional distress. Punitive damages, by contrast, are intended to punish a wrongdoer and to deter others from behaving the same way.
Your auto insurance covers you for compensatory damages up to your policy limits. But most policies exclude punitive damages. Should punitive damages be awarded in a trial, your insurer won’t pay for them. If the lawsuit asks for punitive damages, get advice from your lawyer.
There aren’t any hard and fast rules. When the damages are within your policy limits and your liability is clear, the insurance company will probably want to settle an insurance claim as quickly as possible. There’s no sense fighting over a claim that’s easy for a plaintiff to sell to a jury—as DUI and DWI claims tend to be when there’s no real room to argue about liability or damages.
Claims can get bogged down, though, if liability isn’t clear. The fact that you were DUI or DWI doesn’t necessarily mean you were at fault for the accident. For instance, if the other driver failed to yield the right of way to you, your intoxication might not have been the cause of the wreck. When there are good reasons to fight the claim on legal liability, or if the claim seeks excessive damages, it might take longer to resolve.
(Learn more about how to prove fault for a car accident.)
Things are also a bit unpredictable when lawsuits are involved. Some are wrapped up within a few months. Others can take several years, especially if the case goes to an appeal after the trial. Lawsuits tend to follow a predictable pattern, but the timeline varies from one case to the next.
In a situation involving a DUI or DWI, there are landmines at every turn. If you’re insured, your insurance company likely will cover your claim, but that’s just one of the issues you’re facing. You also need to be concerned about criminal charges, and with finding new auto insurance in the event your insurer cancels your coverage. You may face other problems too, problems that we simply don’t have the space to address here.
Stated more directly, you’ve got to keep several plates spinning. This isn’t a situation where you want to go it alone. Contact an experienced attorney for help and guidance.
We'll discuss when filing a lawsuit might be a good strategy, analyze some "settle-or-sue" examples, look at alternative dispute resolution possibilities, and more.
The "settle-or-sue" question usually boils down to money. More specifically, you have to navigate the delicate balance between what the insurance company is offering and what you (and your lawyer) believe your car accident case is worth. If your lawyer believes your case is worth significantly more than what the insurer is offering, and that it's unlikely the insurer will increase its offer in settlement negotiations, then it's probably time to file a lawsuit.
But how far apart do you need to be before filing a lawsuit makes sense? Car accident injury claims don't really have a specific value. In most cases, they fall within a range of possible values. It's at this point that you'll want to rely on your lawyer's expertise. Here's why that expertise is so important.
The value of your car accident claim includes compensation for general or noneconomic damages—things like pain and suffering, emotional distress, and loss of enjoyment of life. These damages simply aren't subject to exact calculation. So it isn't realistic to say that a claim is worth, for example, $50,000. Instead, it's more accurate to say that the value of the case falls into a range between $40,000 and $60,000.
When you think about the value of your claim this way, you get a better picture of what your car accident settlement goal should be. In a case that's worth $40,000 to $60,000, your goal should be to settle the case for somewhere in that range—hopefully towards the higher end.
Let's have a look at a few settle-or-sue examples.
If you and your lawyer value your car accident case at $40,000 to $60,000, and the insurer adjuster's settlement offer is $52,000, you take the offer and settle. That’s an easy decision. If the insurer’s final offer is $38,500, it probably makes sense to take it. It's close enough to your valuation of the case that going to trial isn't likely to leave you better off, dollar-wise. If the final offer is $20,000, that’s also an easy decision. It's time to file a lawsuit.
Now for a harder example. Let’s say the insurer’s final offer is $30,000. In that situation, you're certainly justified in filing a lawsuit. The offer isn’t close enough to your valuation of the case. Keep in mind, though, that if you sue, you most likely won’t be able to talk settlement again for at least a few months. Once you file a lawsuit, the defense attorney will want to do some pre-trial investigation and discovery, and the insurer probably won't be interested in settlement discussions until its attorneys are ready to make a settlement recommendation.
Here's another important factor to consider. If you file suit, your lawyer’s out-of-pocket expenses and case costs will start to increase significantly. The additional money you hope to get by filing suit needs to cover those costs and expenses and put enough money in your pocket to make a lawsuit worthwhile.
Let’s look at one more example. Suppose that, pre-suit, your lawyer’s costs are $1,000. With a $40,000 offer and a 1/3 contingency fee agreement, your lawyer’s fee is $13,000. You'd net $26,000 from the settlement. You reject that offer and file suit. After a year of pre-trial investigation, the insurer's offer is up to $54,000, but your lawyer’s costs have increased to $6,000. After deducting the 1/3 attorney’s fee and case costs, your net recovery would be $32,000. Was it worth a year’s wait to get $6,000 more? Only you can decide that.
So what's the takeaway? Because of the time and expenses involved in a lawsuit, odds are it only makes sense to sue if you and your lawyer feel that your claim is worth substantially more than the insurer’s final pre-suit offer.
If you're faced with the settle-or-sue decision, there are alternative dispute resolution (ADR) methods that can save you time and money and still improve your net recovery. Mediation and arbitration are two popular kinds of ADR.
Mediation involves voluntarily meeting with a trained mediator who helps the parties to "meet in the middle." But the mediator isn't a judge who decides the case. Instead, the mediator typically listens to brief opening statements from the parties and then separates them into different rooms. The mediator then shuttles back and forth between the rooms, encouraging the parties to adjust their positions and come to a settlement.
Arbitration, on the other hand, involves an agreed upon arbitrator (or panel of arbitrators) hearing evidence and deciding the dispute as would a judge. The arbitrator's decision is usually binding and can, if necessary, be enforced by a court.
In most states, there are courts that decide lawsuits where the amount in dispute is relatively small. They're sometimes called "limited jurisdiction" courts because they only have authority to hear cases where the parties are fighting over a limited amount of money.
Small claims court. The best-known of the limited jurisdiction courts is the small claims court. In a few states, lawyers aren't allowed to appear in small claims court—the parties must represent themselves. Even in states where lawyers are allowed to appear, the small amount that's at stake probably makes hiring counsel cost prohibitive. The rules that normally apply in court tend to be relaxed. Think "People's Court" but with real judges and without all the made-for-TV drama, and that's small claims court.
How much can you sue for in small claims court? It depends on state law. The range is from a low of $2,500 in Kentucky to a high of $25,000 in Delaware and Tennessee. Most small claims courts cover claims up to several thousand dollars.
"Regular" civil court. If you want to recover more than the dollar amount that's allowed in your state's limited jurisdiction court, you'll have to file a lawsuit in the civil court for the state where the accident happened. The process here will be slower, more expensive, and governed by more rules than the small claims court. The tradeoff, of course, is that you can recover more money.
You're not required to have a lawyer represent you even if you file a lawsuit in regular court, but it's almost always a good idea. Complex rules of procedure and evidence apply. While most judges will cut self-represented parties a bit of slack, their patience will only go so far. Repeated errors can land you in hot water. If your claim involves anything more than very minor injuries, or if there are difficult legal or procedural issues involved, your best bet will be to have experienced legal counsel handle the case.
When it comes time to decide whether a lawsuit is the right move in your situation, your lawyer's opinion should be a key factor in your decision-making process. Valuing a case may not seem like rocket science, but it isn’t as straightforward as you might think. An experienced lawyer has handled dozens—perhaps hundreds—of car accident claims, has data regarding car accident case outcomes, and understands local claim valuation and settlement practices.
If you're ready to move forward with your claim, learn more about how an attorney can help in a car accident case. Here's how you can find a lawyer who's right for you.
But of the estimated 16,397 tort cases that did end in trial in 2005, nearly 60% were automobile cases. Some car accident cases simply can’t be settled. Maybe there’s a disagreement about who was at fault for the accident. Or maybe both sides agree that the person suing was injured, but can’t agree on the right amount of compensation for those injuries.
The exact rules governing trials vary from state to state, but many states follow similar trial procedures. In this article, we’ll answer your questions about car accident trials, including:
If you can’t settle your car accident case through the insurance claim process, you’ll have to drop it or go to court and file a car accident lawsuit. A lawsuit is a type of formal legal action that happens in the civil court system.
Lawsuits begin when the plaintiff (the person suing) files a complaint against the defendant (the person being sued). Both sides exchange information about the case through formal discovery. After discovery is complete, if the parties still can’t reach a car accident settlement, the case heads to trial.
During a car accident trial, the plaintiff and defendant (typically through their respective lawyers), present evidence and make arguments to the fact finder. According to BJS, juries decided about 90% of the tort cases that went to trial in 2005. The remaining 10% of trials were decided by judges alone in “bench trials.”
Jurors play a critical role in most car accident trials. Jurors listen to the evidence, decide what happened, reach a verdict about who is liable according to the law, and award damages. According to the National Center for State Courts, 33 states use a 12-person jury for civil trials. Other states use six, seven, or eight-member juries for civil trials.
Jurors are selected during the first stage of the trial. The legal term for jury selection is “voir dire,” which is French for “to speak the truth.” During jury selection, the judge asks the potential jurors questions to determine if they have any biases or prejudices that may keep them from being fair and impartial jurors. The plaintiff and defendant—again, typically through their respective attorneys—usually ask jurors follow-up questions. Jury selection continues until all of the members of the jury are accepted as jurors for the trial. Alternate jurors may also be selected.
After the jury is selected, members of the jury take an oath that they will reach a verdict based only on the evidence presented in the trial and the court’s instructions about the law.
Once the jury is sworn in, the parties make opening statements. The plaintiff usually goes first, because the plaintiff has the burden of proof. Car accident plaintiffs typically must prove by a preponderance of the evidence—a more likely than not standard—that the defendant was at fault for the accident and their damages.
The opening statement is an opportunity for each side to tell the jury what they expect the evidence will show. Opening statements aren’t evidence. The purpose of an opening statement is to give the jury an overview of the case and the issues the jury will have to decide.
Following opening statements, the plaintiff presents evidence. Again, the plaintiff goes first because the plaintiff has the burden of proof.
Evidence may include the testimony of witnesses who are under oath to tell the truth. For example, the plaintiff may testify about how the accident happened and the injuries and vehicle damage caused by the accident. The plaintiff may also call bystanders, medical experts, and other car accident witnesses. Witnesses are kept out of the courtroom until they testify so that they speak from their own knowledge and don’t change their stories based on what they hear other witnesses say.
Evidence may also include written documents and objects like road debris, X-rays, photographs, and other physical things called “exhibits.”
A court reporter keeps a record of the entire trial and the court clerk keeps track of any documents, photographs, and other physical evidence introduced.
When the plaintiff is done presenting evidence, the defendant then has a turn to present evidence. Unlike plaintiffs, defendants typically aren’t required to present evidence because the burden of proof is on the plaintiff, not them. But most defendants take the opportunity to tell their side of the story.
For example, the defendant may take the stand to refute the plaintiff’s story about how the accident happened. The defendant may also call a medical expert to say that the plaintiff’s injuries aren’t as serious as the plaintiff is claiming or couldn’t have happened the way the plaintiff says they happened.
Both sides have a chance to question their own witnesses first on direct examination. Then each side has a chance to question the other side’s witnesses on cross-examination.
Defendants also have a chance to introduce their own photographs, documents, and other physical evidence to undercut the plaintiff’s case and bolster their claims about how the accident happened.
Following the close of evidence, each side gives a closing argument. Closing arguments are a chance for the plaintiff and defendant to highlight key pieces of evidence and try to persuade the jury (or judge in a bench trial) to reach a verdict in their favor.
The jury is typically asked to decide whether the defendant is liable (legally responsible) for harming the plaintiff and, if so, how much money to award the plaintiff in damages.
After hearing closing arguments and the judge’s instructions on the law, the jury moves to the jury room to talk about the case. All of the jury’s discussions are confidential—the jury and only the jury is present during deliberations.
The jury picks a foreperson to organize deliberations and communicate with the judge. The goal of deliberation is to reach an agreement on a verdict. Most states require that at least three-quarters of the jury agree on a verdict. Juries can deliberate for as long as they want, there is no set time limit.
Juries usually—but not always—reach a verdict. When a jury can’t reach an agreement, the foreperson tells the judge that the jury is deadlocked. The judge may encourage the jury to continue to deliberate if a verdict seems possible or declare a mistrial and let the jury go.
If the jury reaches a verdict, the foreperson tells the judge. The judge then brings the jury back into the courtroom where the verdict is read to the parties and made a part of the official record of the court.
Most car accident trials last a few days, but they can take weeks or even months, depending on the complexity of the evidence, the number of witnesses, and the seriousness of the injuries involved.
For plaintiffs, winning a trial is one thing—actually collecting a judgment in a car accident is another.
Here are some real-world jury verdicts in car accident cases, courtesy of our readers.
In heavy traffic on Route 66 in Northern Virginia, Walter Reusche’s vehicle was rear-ended by another driven by Inocentes M. Lutz. Mr. Reusche claimed that Ms. Lutz's failure to keep a proper lookout and maintain a safe distance between vehicles amounted to negligence. Mr. Reusche also claimed that he sustained a torn rotator cuff, which required surgery. Mr. Reusche, a 40 year-old who worked as a computer technician, claimed medical bills of $12,000 and lost income of $2,000.
Ms. Lutz admitted fault for the car accident but disputed the extent of Mr. Reusche’s car accident injuries.
After deliberating for about 1½ hours, a jury returned a verdict of $20,000 for Mr. Reusche.
Analysis: Because Mr. Reusche had to go through shoulder surgery, a jury might have been expected to award more for pain and suffering than this one did. Mr. Reusche "demanded" $30,000 before trial, but Ms. Lutz’s insurance company, Allstate, offered only $14,000. After paying an expert witness (his orthopedic surgeon) to testify, and considering the time and hassle that it took to get the case to trial, it turned out that going to court didn't add much, if anything, to what Mr. Reusche would have netted if he had accepted the defense's settlement offer. Of course, it's always easy to make these judgments after the case is over.
Fifty-two year old David Peterson was standing on a sidewalk outside his car in a parking lot, when a van driven by Victoria T. Esparza, an employee of American Habilitation Service, Inc. (AHS), jumped a curb, hit two parked cars and then struck Mr. Peterson. The lawyer for the plaintiff argued that Ms. Esparza was going at least 30 miles per hour when she hit Mr. Peterson and that AHS negligently hired Ms. Esparza because she had a poor driving record. (Learn more about employer liability for employee-caused car accidents.)
Mr. Peterson sustained multiple fractures throughout his lower, upper and mid-body, a brain injury and a subarachnoid hemorrhage. He died as a result of his injuries.
Mr. Peterson's family argued that he would have earned $1.4 million to $1.8 million over his remaining work life.
A Texas jury awarded damages against both AHS and Esparza, and in favor of Mr. Peterson's surviving family members. The total verdict was $4,280,000.
Analysis: This case illustrates that "wrongful death actions", which are controlled by state law, normally benefit surviving family members. In this case, the family members were able to recover for "loss of society and companionship," loss of inheritance, loss of pecuniary contribution, and mental anguish. In a separate "survival action," there was also an award for Mr. Peterson's conscious pain and suffering, and for the cost of treating him before his death.
Scheherezede was riding her bicycle on Santa Monica Boulevard in West Hollywood. The driver of a parked car opened his door, and Scheherezede ran into it. She was thrown onto the road and another driver ran over her left arm.
The owner of the car who opened his door claimed that Scheherezede was not paying attention. The driver of the car that ran over her left arm claimed he didn't have time to avoid her. (Learn more about common fault issues in bike-versus-car accidents.)
A jury decided that the driver who ran over Scheherezede's arm wasn't to blame, that the driver with the open door was 65 percent at fault, and that Scheherezede was 35 percent at fault.
The jury awarded Scheherezede $103,331. However, because of Scheherezede's comparative negligence, this amount was reduced to $56,620.
Comments: Scheherezede is fortunate that her bicycle accident happened in California, a comparative negligence state. If this case had been filed in one of the five contributory negligence states, Scheherezede would not have been able to recover anything (because any contributory negligence in those states completely defeats the claim). Learn more about comparative and contributory negligence in car accident cases.
You aren’t required to hire a lawyer to file a lawsuit or go to trial. But representing yourself in court is no simple task. You have to know and follow the same complex rules of procedure and evidence that lawyers spend years studying and practicing in the courtroom. You will be at a real disadvantage if you go it alone.
A lawyer can take you through the entire process of filing a car accident lawsuit, negotiating a potential settlement, and advocating for you in court if necessary. A lawyer can give you a sense of how much your case might be worth and what the odds are that you’ll win at trial. Having a lawyer on your side will help you get the best possible outcome in your case.
Learn more about attorneys’ fees and how an attorney can help with your car accident claim. When you’re ready, you can connect with a lawyer directly from this page for free.
]]>As the case progresses, a car accident attorney should be able to provide a ballpark estimate of what the plaintiff can expect to recover by way of settlement. But it's a different story if a car accident case goes to trial.
In any event, a car accident attorney will want to manage the plaintiff’s expectations while focusing on the factors that have the greatest impact on car accident case value. Let's look closer at these key factors.
There are two main types of compensable losses ("damages" in the language of the law) available to someone who's been injured in a car accident case: economic damages and non-economic damages. You and your attorney need to have a fairly complete picture of both of these categories before you can start to attach a dollar value to your car accident case.
Economic damages are out-of-pocket losses directly related to the car accident. These include:
In a car accident case, economic damages are the easiest to calculate, although it can be difficult (or it may take some time) to determine their full scope and extent.
Non-economic damages refer to car accident losses that are less tangible, and that are tougher to capture with a dollar figure. These include:
When you file a claim against another driver for injuries resulting from a car accident, it’s rarely the driver who actually pays out a settlement or court award. Instead, it’s the other driver’s car insurance company that pays. So, their car accident policy limits may determine how much money you can realistically recover. (Get details on different types of car insurance.)
Until your lawyer can confirm the details of the other driver's car insurance policy, and get a sense of their overall finances, the attorney can’t know for sure what your case is worth. This is because even if the attorney can somehow accurately estimate your damages, if the other driver carries only the state's minimum car insurance coverage, and has no significant income or assets, your case value will likely match the policy limits. Learn more about how car insurance affects a car accident case.
Unless both sides are in agreement on the extent of your damages and who was at fault for the car accident (which is unlikely), you'll have to provide strong evidence backing every aspect of your claim. That means, among other things:
It's rare for an attorney to be able to assess the strengths and weaknesses of a client's car accident case without first doing a fair amount of investigation and preparation. That means it will be difficult for your lawyer to estimate what your case is worth until:
Most car accident cases end in settlement, and only a very small percentage of car accident lawsuits make it all the way to trial. But even the prospect of going to trial can have an impact on the perceived value of a car accident case.
Not all juries and judges will decide cases the same way. Some counties, even those right next to each other, will have significant differences in the tendencies and biases regarding personal injury lawsuits. Local attorneys learn which counties are more "plaintiff friendly" or "defendant friendly."
In some situations, there will be more than one potential location where a lawsuit can take place. Until your attorney chooses where to file the lawsuit, and the defendant confirms it won’t contest the chosen location by filing a motion for change of venue, there may be a significant unknown in determining what your case is worth.
In the days and weeks after a car accident, it might help to focus more on protecting your health and building your claim, and worry less about what the outcome of your case might look like. That means:
When your car accident injuries are significant, it might make sense to discuss your situation with an experienced legal professional. Learn more about how a car accident lawyer can help your case, and how car accident lawyers get paid.
]]>There’s a lot riding on the depositions of both the plaintiff (the party who files the lawsuit) and the defendant (the party who’s being sued). You’re not going to win the case in your deposition, but you can go a long way toward losing it if you perform poorly. With that in mind, here are five do’s and five don’ts to remember as you prepare for and attend your car accident deposition.
(Learn more about the steps in a personal injury case, and what to expect at each step along the way.)
As the plaintiff or the defendant in a car accident lawsuit, you must attend a deposition. During your deposition, you’ll spend several hours (with breaks, of course) answering questions under oath. Your lawyer will be there, along with a court reporter who will make a transcript of the deposition. The other side’s lawyer will ask you questions.
Make sure to get plenty of rest the night before you’re deposed. Stay away from alcohol and other substances that might leave you groggy or hung over the next day. If you’re sick, ask your lawyer to postpone the deposition. It’s tough enough to maintain your composure under stress when you’re well. When you’re ill, you’ll be more prone to make mistakes.
Here are five important things you should do.
And when you think you’re done preparing, prepare some more. You’ll spend lots of time with your lawyer and on your own getting ready to answer questions. Your preparation should focus on two things:
Your lawyer likely will spend several hours, probably over many days, reviewing questions you can expect to be asked during your deposition. This exercise serves at least two important purposes. First, hearing the questions ahead of time will help you avoid being surprised in the deposition. Second, you’ll have plenty of chances to practice your answers.
There’s nothing wrong with preparing and practicing your answers this way. It’s a common and expected practice, and you’d be foolish not to do it.
Both the plaintiff and the defendant will need to review their interrogatory answers, photos and videos of the accident scene, witness statements, the police report, any notes they made, and other documents that are relevant to the case. The plaintiff will also need to review all medical records relating to care and treatment they received for injuries suffered in the wreck.
If you don’t have a lawyer, you should think—long and hard—about getting one. Odds are you’ve never been through a deposition before. And even if you have, you still need experienced legal counsel at your side. Without that help, to put it simply, you’re in over your head. And you needlessly increase the chances of making a mistake that will cost you down the road.
It’s tempting to think that the lawyer who’s questioning you controls the timing and pace of the deposition. Not so. Remember: As the party being deposed, you control the pace of the deposition. This can be a useful tool, as it can keep the lawyer from getting into a questioning rhythm that makes you uncomfortable.
Listen to each question carefully and make sure you understand what you’re being asked. If you need some time to think about the question and your answer, that’s fine. You don’t get extra points for answering quickly. If you don’t understand a question, ask the lawyer to rephrase it or ask it a different way. Your lawyer can help if you need it.
The cardinal rule throughout the lawsuit and in your deposition is: Tell the truth. Always. Even if you think it might hurt your case. It’s your lawyer’s job to figure out how to deal with truthful answers that might hurt your claims or defenses. The solution isn’t to withhold information or lie.
Keep in mind, too, that you’ll be under oath during your deposition. Lying under oath is called perjury, and it’s a crime. You won’t end up in jail if you lie during your deposition, but you can expect to have a very angry judge who might hit you with sanctions—penalties that can include, for example, monetary fines, dismissal of claims or defenses, and more.
Your attorney has been through depositions—lots of them—and knows what’s allowed and what’s not. When your lawyer starts talking, you stop, and don’t start talking again until your lawyer tells you to. Do as instructed when your attorney tells you to answer (or not answer) a question.
The goal of your deposition isn’t to help your case. It’s to avoid doing anything that will hurt your case. The other side’s goal is simple: Get as much damaging information about you and your claims as possible. The more you say, the greater the odds that you give them that information.
Here are five things you don't want to do.
Answer each question truthfully and completely, then stop talking. Don’t volunteer information, and don’t answer questions that you weren’t asked. Don’t try to embellish your answers to make them sound better.
If the question is “Did you have your seatbelt on?” the answer to that question is either “Yes” or “No.” The answer isn’t “Yes, but I had to adjust it so it wouldn’t wrinkle my slacks.” You’ve just volunteered information. Worse yet, you’ve given the lawyer potential ammunition with which to attack you. That attack probably won’t come during your deposition. It’ll happen during trial on cross-examination, in front of a jury, where it can do the most damage.
If you don’t know the answer to a question, say so. "I don't know" or "I don't recall" are both acceptable answers, as long as they're true. Don’t speculate or guess—it can come back to bite you later.
On a related note, avoid answering vague or ambiguous questions. Suppose, for example, that you’re asked “Was it cold outside that morning?” That seems like a reasonable question, the kind of thing we chat with others about every day. The problem is that “cold” is a vague and ambiguous term.
Consider asking the lawyer to clarify: “I’m not sure what you mean by cold. Can you please clarify that?” or “What do you mean by ‘cold’?” Whenever possible, try to stick to verifiable facts. “What was the temperature outside that morning?” is fine, as is “Did you wear a coat that morning when you left your home?”
Getting baited into an argument is one of the oldest tricks in the deposition playbook. Don’t fall for it. If there’s any arguing to be done with the other lawyer, let your lawyer handle it.
Here’s why arguing with your opponent’s lawyer is a bad idea. First, you’re arguing with a lawyer—someone who’s trained to argue and who argues for a living—so it won’t be a fair fight. Second, the lawyer wants to goad you into losing your cool, knowing that you’re more likely to say things that will hurt your case if you lose your temper.
You want to tell your story, and that’s understandable. But a deposition isn’t your chance to tell it. That will come later—if necessary—in a trial.
The opposing lawyer will ask you open-ended questions that invite you to give long, rambling answers. It’s human nature to want to vent your feelings but resist that temptation. It’s a trap. If you take the bait, don’t be upset when your lawyer cuts you off and tells you to stop talking. That’s your lawyer’s job.
You’ll be asked about statements you’ve previously made about the accident, your injuries, the treatment you’ve received, and your damages. But here’s the problem: You might not be told that you’re being asked about your prior statements. The opposing lawyer hopes to catch you saying something that’s inconsistent with what you said before.
It’s your job to be familiar with things you said about the case before your deposition. You’ll find your prior statements in the police report, your medical records, your interrogatory answers, and any other statements you might have made (like to insurance adjusters or others). Review these statements—several times—before you sit for your deposition.
For most people, a deposition is an intimidating experience. Nothing that anyone can say or do will put you completely at ease. The best antidote for nerves and jitters is thorough, repeated preparation. Don’t be shy about asking your lawyer to spend time with you helping you prepare. After all, it’s their job.
If you don’t have a lawyer, you should get one well in advance of your deposition. When you’re ready to take that step, here’s how to find a lawyer who’s right for you and your case.
We’ll explain what interrogatories are and how they work, with examples of interrogatory questions and answers so you can see what they look like.
Interrogatories are sent and answered during a process called “discovery,” which is the part of a lawsuit where the parties gather evidence to prepare for trial. Let’s find out what discovery is, the rules that control it, and what can be discovered.
Discovery is the part of a civil lawsuit where each party (the “plaintiff” who has filed the lawsuit and the “defendant” who is being sued) learns about the claims, defenses, and facts known to, or being relied on, by the other parties. It begins shortly after the lawsuit starts.
A lawsuit might take from six months to more than a year to finish in the trial court, and most of that time will be taken up by discovery.
Every state (and the federal court system) has detailed written “rules of civil procedure” which—among other things—identify the allowable discovery methods and describe when and how discovery can happen. (Here’s an electronic version of the 2023 federal rules of civil procedure to give you an example. Be sure you check the rules for your state if your case is in state court.)
Unfortunately, there’s no simple answer to this question. The best we can do here is lay out a few basic, general rules. If you’re in a lawsuit and are fighting with the other side about what’s discoverable, you should think about hiring a lawyer to assist you.
Here are the most basic requirements for something to be “discoverable.”
Material is relevant if it tends to make some fact significant to the case more or less likely to be true. Let’s assume, for example, that in a car wreck case, the plaintiff claims the defendant was drunk at the time of the collision. The defendant denies being drunk.
The number and type of alcoholic drinks the defendant had in the hours leading up to the wreck clearly would be relevant, and a proper discovery subject. On the other hand, whether the defendant was carrying on an extramarital affair with a co-worker around the time of the wreck likely isn’t relevant.
Some evidence is “privileged,” meaning that, as a general rule, it can’t be discovered or used at trial. Whether a privilege exists and, if so, the scope of the privilege, are questions of state law. Here are a couple of examples.
The attorney-client privilege protects communications between attorneys and their clients relating to the subject matter of the representation. In a car wreck case, conversations between an attorney and a client about the accident likely would be privileged. Conversations about the city’s professional football team would not be (but they might not be relevant).
The physician-patient privilege protects communications between doctors and their patients relating to the diagnosis, treatment, or cure of any medical condition. Note, though, that a personal injury plaintiff claiming some physical or emotional injury can be required to waive this privilege to the extent necessary to make those claims.
Interrogatories are individual, separately-numbered written questions. They ask for information about a lawsuit, including:
While they’re referred to as questions, there’s no rule that requires interrogatories to be phrased in question form.
Interrogatories can be sent at any time during discovery. As we’ll see, interrogatories are particularly useful for gathering general and background information about the parties and the case. As a result, they’re usually among the first discovery requests the parties exchange once discovery begins.
There’s another reason why interrogatories are sent early in discovery: Interrogatory answers often suggest topics for more questions later in discovery. For instance, suppose that in a car accident case, the defendant was taking a medication that might produce drowsiness. Medical information like that is something a well-drafted interrogatory would discover.
An interrogatory can lead to the plaintiff finding out more with additional discovery, like a deposition. In a deposition, a party (or more likely, a party’s attorney) asks a “deponent” (the party or witness being questioned under oath) verbal questions. The questions and answers are recorded by a court reporter. Because they’re face-to-face, depositions can be more spontaneous and allow for more detailed follow-up questions.
To continue with our medication example, in a deposition the plaintiff’s lawyer might ask:
Federal and state rules of civil procedure limit the number of interrogatories a party can send. In federal court, for example, a party can’t send more than 25 interrogatories without the recipient’s or the court’s permission. If an interrogatory is divided into subparts (for example, 3.a., 3.b., and 3.c.), each subpart is treated as a separate interrogatory. (See, e.g., Fed. R. Civ. Proc. 33(a)(1)(2023).)
A party who receives interrogatories must—as a general rule—answer each interrogatory fully, in writing, and under oath. Because they are made under oath, untruthful answers can subject the answering party to penalties for perjury.
Here are the rules of thumb for answering interrogatories:
The answer deadline varies, but 30 days is typical. Check your state’s rules of civil procedure for specifics. Within limits set by the court, the parties can agree to extend the answer deadline, which is a common practice. The court also can grant an extension of time to answer.
What if an interrogatory asks for information that’s outside the scope of discovery? Suppose, for instance, that an interrogatory asks the plaintiff about the substance of conversations the plaintiff had with others about the automobile accident that’s the subject of the lawsuit. Some of those conversations—specifically, conversations the plaintiff had with their attorney—likely would be protected by the attorney-client privilege.
The correct response is to “object” to the interrogatory and to state the specific reason for objecting. Once the objection is fully stated, answer the interrogatory to the extent possible without disclosing objectionable information. (Here’s another good time to note that you would ideally have a lawyer, who in this instance would help you answer and object to the questions.)
Here’s how that would look:
“Plaintiff objects to Interrogatory 12 because it seeks information protected by the attorney-client privilege. Without waiving this objection, plaintiff states that plaintiff has discussed the auto accident with the following persons:
Two final points. First, your answers and objections need to comply with the rules of procedure in your state. Be sure you’re familiar with those rules.
Second, if you have reason to object to an interrogatory but you fail to do so, the court can treat your objection as “waived.” This means you’ve given up the right to object and must answer the interrogatory even if it asks for something improper.
Again, having a lawyer is often critical during litigation. Even if you don’t have questions about how to answer or object to interrogatories (or other discovery), consider hiring experienced legal counsel to help.
Here are some sample car accident interrogatories and answers. These are questions likely to be asked by both parties, plaintiff and defendant.
ANSWER: I have lived at:
ANSWER: I am married to Jane Doe, who lives at 215 Maple Street, Smalltown, OH 55515. This is my only marriage.
ANSWER: I have two children, both by birth:
ANSWER: The people who have lived with me during the past 10 years are:
ANSWER: I have never pled guilty or no contest to, or been convicted of, a felony or misdemeanor.
ANSWER: I was cited by the City of Smalltown, OH in August 2018, for making an unlawful right-hand turn on a red light. I pled guilty and paid a fine.
ANSWER: I am not required to wear glasses or contact lenses while driving a motor vehicle.
ANSWER: I attended:
ANSWER: During the past 10 years I have worked at West Opolis Chevrolet, 370 South Avenue, West Opolis, OH 55511. My immediate supervisor is Karen Coe. I am an auto mechanic and my duties include repairing automobiles.
ANSWER: I have not been involved as a driver in any motor vehicle accident other than the accident which is the subject of this suit within the past 10 years.
ANSWER: James Doe, address listed above, no phone, my son, was the only passenger in my motor vehicle at the time of the accident.
ANSWER: I was driving from our home to the West Opolis Youth Sports Complex.
ANSWER: The persons who, to my knowledge, claim to have witnessed the accident, include:
OBJECTION: I object to this interrogatory because it asks for information protected by the attorney-client privilege.
ANSWER: Without waiving my objection, I have spoken to:
ANSWER: I did not drink any alcoholic beverages within the 24-hour period prior to the accident.
These sample interrogatories aren’t intended to be a complete set. Each side would have more questions. For example, here are some additional topics the defendant would cover with the plaintiff:
If these questions sound very personal and intrusive, it’s because they are. When a plaintiff sues for personal injuries, the plaintiff’s medical history—usually including any history of mental or emotional issues—is at issue. The court will prevent the parties from harassing one another or getting into irrelevant or improper matters, but that leaves a lot of room for inquiry.
Outside of a trial, discovery can be one of the most contentious and confrontational times in a lawsuit. The parties often disagree about what’s discoverable, and disagreements can be heated.
And while answering interrogatories—and writing ones of your own—might seem boring and tedious, a great deal is at stake. Your claim might depend on what evidence you collect and disclose.
An experienced personal injury attorney is used to the give-and-take of discovery and knows how to write and answer interrogatories in ways that best protect your interests and strengthen your claim or defense. (Learn about how to find an attorney.)
The time period within which you can expect payment of your damages depends on whether the obligation to pay arises out of a settlement agreement or as a result of a trial in court. Let’s look at each of these scenarios.
A settlement agreement is a pre-trial resolution of your car accident case. An agreement can be reached at any time between the parties, but generally occurs at some point before the beginning of a trial in court. It can even occur without a lawsuit ever being filed.
The paperwork for an injury settlement will include a written release in which you agree to accept compensation in exchange for giving up any future legal or financial claims related to your accident. To ensure that you receive your money in a reasonable amount of time, you can ask that the release include:
Keep in mind that, if you’re negotiating with an insurance company (or any big organization), they’ll have standard forms for these kinds of legal agreements and their own ideas about things like how many days or weeks it should take for you to receive your settlement money. You may find it helpful to work with an attorney who can negotiate on your behalf and advise you on what kind of settlement terms are reasonable.
If you win in court, the amount of time the defendant has to pay the judgment will vary based on the laws where you live and the rules of the court that heard your case. The losing party in a lawsuit typically doesn’t pay a judgment until certain post-judgment deadlines pass.
The defendant in your lawsuit may want to file a motion for a new trial following an unsatisfactory outcome. Court rules usually give losing parties only a few weeks to file this kind of motion. For example, the deadline for asking for a new trial is:
If a new trial is ordered, that means the original judgment is overturned and you’ll start again.
The losing party might also choose to file an appeal, where they ask a higher court to overturn all or part of the original verdict. An appeal usually means that the judgment is put on hold, and will only be paid if the higher court affirms the decision of the jury or trial court judge. The deadline for filing an appeal is typically about 30 days, but varies by jurisdiction. For example, litigants in Colorado state court have 49 days, but the time limit in Missouri is only 10 days.
Remember that the clock doesn’t necessarily start ticking on these deadlines just because a judge or jury has ruled in your favor. In New York, for example, the losing party’s deadline for filing an appeal is measured from when you send them a written notice of the court’s judgment. Make sure you do everything the law requires to get the process started.
If the other side doesn’t meet its payment deadline you have several options for collecting the money. These tools can be particularly useful where the losing party is ignoring the legal obligation to pay the judgment.
The good news is that, if your judgment involves an insurance claim arising out of a car accident, the collection of a judgment is usually a relatively smooth process. That’s because, even though the other driver is probably named personally as the defendant, it’s the driver’s insurance company that will usually be writing the check for the judgment.
Insurance companies appear in court frequently, and are well aware of the penalties (and potentially the damage to their reputations) that come with failing to pay a judgment on time. That means you can typically expect a check from an insurance company to arrive within 15 to 45 days of a court’s ruling (unless they decide to appeal or ask the court for a new trial). For similar reasons, it would be unusual for an insurance company to try to backtrack on a payment deadline they agreed to as part of an out-of-court settlement.
Sometimes you might have to take extra steps to get a business or individual to pay the money they owe you. If the deadline was part of a negotiated settlement, then you can with the options for pursuing payment that are included in the settlement agreement. This could eventually lead to a court’s involvement in enforcing the terms of the settlement.
In most states, the process of using the legal system to collect a judgment is called “execution” on a judgment, and it can take many forms. When you’re owed money as the result of a decision by a judge or a jury, you’re a so-called “judgment creditor.” That means you have more options than other kinds of creditors (for example, credit card companies) for collecting the money you’re owed. These include:
Businesses and individuals that are financially able to pay court-ordered judgments will generally prefer to just hand over the money and move on. So, if you’re having trouble collecting a judgment or settlement, it may make sense to try to work out a payment arrangement before pursuing further legal remedies. Negotiations can be an important part of the collection process just like they are during the car accident insurance claim or lawsuit process. An experienced attorney may be able to help you decide on the best way to proceed.
]]>A counterclaim is a legal claim that the defendant in a lawsuit (the person being sued) can file against the plaintiff (the person who filed the original lawsuit). (Get the basics on car accident lawsuits.)
A counterclaim is not a separate lawsuit, and the allegations in it must usually relate to the subject matter of the original complaint—so it must pertain to the underlying car accident, and not to some other legal dispute—although there can be exceptions, which we'll touch on below.
It's important to keep in mind that a counterclaim is a legal filing that's part of a larger, court-based lawsuit. It's not a type of insurance claim. If someone involved in your car accident files an car insurance claim for their losses, you can always file your own separate insurance claim (like a third-party claim against the other driver's insurance company) seeking compensation for your own accident-related harm. But that's not referred to as a "counterclaim" in the insurance world (or anywhere else).
Here's how the standard counterclaim arises in a car accident lawsuit:
Assuming that Barry has car insurance, his insurer will likely handle all aspects of the counterclaim, since it's likely that the insurer has already appointed a car accident lawyer to defend the lawsuit in court.
In fact, it's generally the car insurance company, and not the driver, who will decide if a counterclaim should be filed at all. If the driver wants to file a counterclaim, but the driver's insurer doesn't think it's a good idea, no counterclaim will likely be filed.
Let’s take a closer look at how the counterclaim in a car accident case will work, in the context of Anna's lawsuit against Barry.
The lawsuit begins with the service of the "complaint" and "summons" by Anna (the plaintiff) on Barry (the defendant). In many states, Barry will then have a short period of time, possibly four weeks, to determine how he wants to respond. Learn more about starting a personal injury lawsuit.
If Barry decides to file a counterclaim, he must file an "answer" to Anna's complaint with the court, and then file the counterclaim according to the court's rules.
Discovery (the pretrial investigation process) will then begin on both the complaint (Anna's original lawsuit) and Barry's counterclaim. During the discovery process, both parties will investigate one another's allegations, using tools like:
Keep in mind that the parties are entitled to conduct discovery on the allegations of Barry's counterclaim just as if it was a regular lawsuit.
Let’s say that the parties complete discovery and conduct mediation, but the settlement negotiations fail. Now they have to go to trial. Let’s look at how a trial proceeds when a counterclaim is involved.
The evidence on the counterclaim is generally heard at the same trial in which the evidence on the main lawsuit is heard. The major difference between presenting evidence on the main lawsuit and evidence on the counterclaim is that it is the defendant (Barry) who has the burden of proving the allegations of the counterclaim (remember that the counterclaim is an independent legal claim, not a defense).
In any trial, the plaintiff will make the first opening statement to the jury. Then, the defendant will make an opening statement. After the opening statements, Anna (as the plaintiff) presents her evidence (calling witnesses, entering documents and diagrams into evidence, etc.) first.
After Anna has finished presenting her evidence, Barry will present his evidence on both:
After Barry finishes presenting his evidence, Anna will then have a chance to present additional evidence in response to Barry's case.
Finally, the parties will make their closing arguments. The defendant usually goes first and the plaintiff last. But in some states:
The judge’s instructions to the jury and the jury deliberation form are more complicated when there's a counterclaim.
In a regular car accident case, the jury simply decides if the defendant was negligent, and, if so, they next calculate the plaintiff’s damages. When there's a counterclaim, the jury has to:
In order for the jury to understand what it's doing, the judge has to give additional instructions to explain exactly what a counterclaim is and who has what burden of proof.
If you're thinking about filing a counterclaim as part of a car accident lawsuit that's been filed against you, it's probably time to discuss your situation (and your options) with an experienced legal professional. If your insurance company has appointed a lawyer to defend you, start by talking with them about the prospect of filing a counterclaim.
If no lawsuit has been filed yet, and you're trying to be proactive and protect yourself, you might want to try finding a lawyer on your own. Learn more about how an attorney can help in a car accident case and get tips on getting help from a personal injury lawyer.
]]>If you settle your car accident claim and sign a release of liability, your claim is over, even if you later refuse to accept the settlement money. Even if the case is in the lawsuit phase, the lawsuit is now over.
Bottom line: You can never reopen a claim against a defendant that you settled with. If you settled with that defendant before filing a car accident lawsuit, you can never sue that defendant.
Just about the only way that you can reopen a car accident case after you agree to settle it is if you can't agree with the defense attorney or insurer on the terms of the settlement.
Remember that, whenever a plaintiff reaches a personal injury settlement, the plaintiff has to sign a release before the defendant and/or its insurer will pay the settlement proceeds.
Most releases in car accident cases are very straightforward, but, occasionally, the parties have a dispute over the terms of the release. If the dispute is serious enough, the plaintiff or claimant can sometimes, but not always, back out of the settlement. The procedures differ depending on whether the plaintiff settles the case before or after filing suit.
If you settle a car accident claim and don’t want to sign the release that the insurance adjuster sends you, it's probably time to get a lawyer. You probably won't be able to take the dispute any further on your own. The adjuster will likely never change his/her mind based on what an unrepresented person says.
However, keep in mind that even if you hire a lawyer at this stage, the adjuster still might not renegotiate the release. In that case, you'll have two choices: either sign the release and take the settlement money or file suit and take your chances that a judge will allow you to back out of the settlement or get the release changed.
In this situation, your lawyer and the defense attorney will argue over the terms of the release. Usually, they will resolve their differences and come up with a release that your lawyer will advise you to sign.
If they can’t come to an agreement, they will submit the dispute to the judge and allow the judge to decide. Depending on the circumstances, the judge will either:
Even if your lawyer gave you bad advice about settling your car accident case, you still won’t be able to back out of the settlement or file a new lawsuit against the defendant that you settled with. That case is over. The only option you likely have at this point is to file a lawsuit against your lawyer for mishandling your case to such an extent that he or she committed legal malpractice (which is always a tough case to make).
In general, settling a claim against one potential defendant doesn't prevent you from filing suit against other potential defendants in your case (as when there are multiple parties involved in a car accident). But you will need to read the release very carefully.
Releases often say something like, "In return for the settlement money, the plaintiff agrees to give up all potential claims that he/she might have against anyone for the injury in question." Insurers do not use this language because they want to protect all other potential defendants; this is just standard language to make absolutely certain that the settlement means that you can never sue that defendant and that insurer again.
As we touched on earlier, if you've already signed a settlement agreement and a release with respect to your car accident injury claim, and you want to reopen your injury claim in any form, there probably isn't much you can do on your own.
Whether it's getting a settlement agreement set aside (an uphill battle to say the least) or pursuing the possibility of other defendants and other avenues of compensation, it's essential to have a qualified car accident lawyer on your side at this point.
There's no guarantee that a lawyer will be willing to take your case, of course. But getting feedback from an experienced legal professional can be valuable, even if it's bad news. What do we mean by that? Let's say a lawyer (or two or three of them) considers your situation and concludes that there aren't any viable options available to you when it comes to getting more out of your car accident claim. That kind of objective, expert opinion might help you put the matter behind you and move on.
Learn more about how a lawyer can help with a car accident case, and get tips on finding the right injury lawyer.
]]>First things first. A deposition is a question-and-answer session in which someone (called the "deponent") gives testimony under oath in response to questions from an attorney. In legal proceedings after a car accident, a deponent might be:
Depositions aren't part of a car accident case unless a lawsuit is filed in court. So, if you're only making a car insurance claim after an accident, you're not going to need to worry about having your deposition taken as part of the claim process.
But when a car accident lawsuit is filed, depositions are a key part of the information-gathering phase of things (called, appropriately enough, "discovery"). Typically, car accident deposition questions cover three main areas:
Within these three main topics you can expect questions on a range of sub-topics. Let's look at each of these areas in more detail.
(Note: Your own car accident deposition likely won't include all of these questions, and the phrasing/specifics will almost certainly be different, but most of the subject matter we'll cover here is fair game.)
Tip: If you don't know the answers to these (or any) questions, don't guess.
If you've filed a car accident lawsuit and you've learned that you'll need to have your deposition taken, chances are you've already turned your case over to an experienced legal professional. In that situation, your lawyer will take the lead in preparing you for your deposition—what to expect from the process, and what kind of questions to anticipate—and will be right next to you during the deposition itself. Learn more about how car accident lawyers handle your case.
If you've been sued over a car accident and you've received a "Notice of Deposition" advising you that you'll need to have your deposition taken, you might have questions of your own. You might start by contacting your car insurance company. If your car insurance covers the accident and you're facing a lawsuit, your insurance company will likely want one of its lawyers sitting next to you during the deposition.
]]>We'll discuss the differences between a car accident insurance claim and a lawsuit, explain when it makes sense to sue, walk you through how to file your case in court, and more.
Car accident insurance claims and car accident lawsuits share some important characteristics. Most obviously, in both of them, you—the person bringing the claim or filing the lawsuit—want to recover as much compensation for your injuries (called “damages”) as you can.
But claims and lawsuits also differ in very important ways.
You bring a car accident insurance claim when you notify the other driver’s insurance company that you’re seeking damages for personal injuries or property damage caused by the other driver (in insurance terms, the “insured”) in an auto accident. The best way to do this is typically through the insurance company’s online claims page or with a written claim notice letter.
While the claim is ongoing, you’ll likely communicate and negotiate with an insurance adjuster assigned to the claim. The process is informal, and there isn’t an independent third party (like a judge) to resolve factual or legal disputes. The claim process generally goes on until the case settles or the parties agree that they can’t settle it on their own.
A car accident lawsuit is a formal legal action that happens in the civil court system. In a civil lawsuit, the “plaintiff” (the person filing the lawsuit) sues to recover money from the “defendant” (the person being sued). During a lawsuit, you (or more likely, your lawyer) will communicate and negotiate with the insurance company’s lawyer. Your case can still settle after a lawsuit has been filed. In fact, some cases settle during (or even after) the trial.
(Here’s a helpful timeline that explains how a personal injury case moves from an accident to an insurance claim, and then to a lawsuit.)
First things first: Do you live in a no-fault insurance state? If so, you can’t file a car accident lawsuit against an at-fault driver unless your medical expenses or injuries meet certain state law minimums, called “thresholds.”
If you can’t settle your insurance claim and you want to collect damages (and you aren’t in a no-fault state), then you’ll need to think about whether to file suit. Here are some things to consider.
Before you file, make an honest assessment of your case and the likelihood you’ll win. This means weighing the strengths against the weaknesses and figuring the odds that you can get what you want—more damages—out of the suit.
As you work through this process, keep in mind that every case has weaknesses. The key is whether the strengths of your case are enough to overcome them.
You file a lawsuit because you think you can win more damages in court than by accepting a settlement offer. But a lawsuit will mean increased expenses, too. As you factor in the costs involved, focus on these three things.
As the saying goes, “time is money.” A typical car accident lawsuit will take between nine months and a year to get to trial. The case can go on long after trial as well, especially if there’s an appeal.
Stated a bit differently, a lawsuit will almost certainly prolong, not shorten, the time it takes to collect the damages you’re after. Before you commit to filing suit, make sure you can tolerate the delays that are likely to occur.
Case expenses include things like court filing fees, costs for witnesses, travel, transcripts, and much more. Even in a relatively simple car wreck case, these expenses alone (not including attorneys’ fees) can exceed $10,000 if the case goes to trial. If your case involves complicated facts, injuries, or legal issues, the costs can be many times that amount.
In some cases, an experienced lawyer will agree to advance the case expenses needed to get your lawsuit to trial. If you win, those expenses will be deducted from your settlement or verdict. If you lose, the fee agreement between you and the lawyer might require you to repay the case expenses. Be sure you speak with your lawyer about who’s ultimately responsible for case expenses if you lose the case.
If you’ve got a good case, chances are you’ll be able to find an experienced car accident lawyer who will take your case on a “contingency fee” basis. This means the lawyer won’t charge you by the hour. Instead, they’ll take a percentage—typically between 33% and 40%—of any settlement or verdict you receive.
Before you file a lawsuit, make sure you can collect any verdict you might get. Most often, this means finding out if the defendant has insurance that will cover your damages. Generally speaking, filing a lawsuit against an uninsured defendant is throwing good money after bad.
How do you file a lawsuit and get the case ready for a trial? We’ll briefly take you through the main steps, from filing to trial.
If you plan to handle the lawsuit by yourself, before you start you should find a current version of your state’s “rules of civil procedure.” These rules—together with another set of rules called the “rules of evidence”—cover much of what will happen during your case. The rules are technical, complex, and sometimes difficult to understand and apply.
Chances are you’re not familiar with these rules. The time to try and learn them isn’t when you’re representing yourself in the middle of a car accident lawsuit. Give serious thought to hiring an experienced car accident lawyer. Your opponent will be represented by legal counsel. You should be, too.
Courts tend to be somewhat lenient with unrepresented parties, and most judges will tolerate an occasional good-faith mistake. But repeated failures to follow the rules might land you in hot water with the court. Judges have the power to “sanction” (penalize) parties who frequently violate the rules.
In most states, a lawsuit begins when the plaintiff files a document called a “complaint” (some states call it a "petition") with the court.
A complaint consists of numbered paragraphs describing:
In some states, the complaint must specify the amount of damages the plaintiff wants to recover. In other states, this isn’t necessary.
You must file your lawsuit in a court that has:
Most often, you’ll file your car accident complaint in a state court in (or nearest to) the place where the car accident happened.
As a rule, the court can’t exercise its authority over the defendant, and the defendant isn’t required to respond to your lawsuit, until the defendant has been “served” with the lawsuit. Service means delivering to the defendant (in a way allowed by your state’s rules of civil procedure) a copy of the complaint, together with a “summons” that commands the defendant to appear in court and defend the suit.
While the time allowed to serve a lawsuit varies from state to state, 30 days from the date the complaint was filed is typical. This deadline usually can be extended for a good reason, like when the defendant is difficult to track down. If you need more time, you should ask the court, in writing, for an extension.
The court will dismiss your lawsuit if you fail to serve the defendant as required by the rules.
Once properly served, the defendant must respond to the lawsuit. In many cases, the defendant’s first response will be a written request (called a “motion”) that the court dismiss your complaint. You’ll get a chance to respond to the motion.
If the defendant doesn’t ask the court to dismiss your case, or if the court denies the defendant’s motion, then the defendant files a document called an “answer.” The answer is organized in numbered paragraphs. Each paragraph usually admits or denies the allegations listed in the corresponding paragraph of the plaintiff’s complaint.
Also, the answer is where the defendant will identify any legal defenses to the plaintiff’s claims.
Discovery is the part of a lawsuit when the parties exchange information that’s relevant to the case. The scope of discovery—meaning the things the parties are allowed to discover—is quite broad.
In general, discovery will result in the exchange of:
Discovery is designed to give all parties a fair opportunity to gather important facts so they can plan their side of the case. Permissible discovery methods are described in the rules of civil procedure. Most routine car accident lawsuits will include these kinds of discovery.
Once discovery is complete, the case can move forward to trial. Most car accident cases are tried before a jury, but the parties can agree to waive a jury trial and instead try the case to the judge.
Here are the main steps in a civil trial:
After closing arguments, the jury (or the judge) considers the evidence and reaches a verdict, usually in favor of the plaintiff or the defendant. In a case with many legal claims, though, the plaintiff might win some and the defendant might win others.
Once the verdict is announced, the court enters a “judgment” on the verdict. The judgment is simply an order that:
In a word: Yes.
Here are just a few of the skills and abilities an experienced car accident lawyer brings to your side of the case:
The insurance company will be represented by experienced lawyers. Without a car accident attorney on your side, you’re at a disadvantage you’ll find tough to overcome. You only get one chance to file and present your car accident lawsuit. Your best chance at success will come from having an expert car accident attorney on your side.
Once you’ve decided to file a car accident lawsuit, your next step should be to hire an experienced car accident attorney. Here’s how to find a lawyer that’s a good fit for you.
In a car accident lawsuit, an injured person (called the “plaintiff”) sues the person who caused the plaintiff harm (called the “defendant”) for money damages. In most cases, it's the defendant’s car insurance company, not the defendant, who ends up footing the bill for the plaintiff’s damages.
Car insurance companies often make quick settlement offers. Quick settlements save insurance companies work and money. Plaintiffs who accept quick settlements and sign “releases,” giving up their right to sue, might not get the full value of their claim because they don’t yet understand the full extent of their injuries.
If you’ve been injured in a car accident, you should talk to a lawyer before you accept a quick settlement offer from the defendant’s insurer. A lawyer can explain why it’s important for you to reach “maximum medical improvement” before accepting an offer or reassure you that the settlement offer is fair.
Learn more about the role of insurance in a car accident case.
Car accident trials are unpredictable. You might think proving fault (legal liability) for the accident will be easy, but witnesses might not seem as credible on the stand as they did at the scene or the judge might not let your accident reconstruction expert testify.
Proving damages is even more unpredictable than proving fault. Insurance companies fear that a jury will award sympathetic plaintiffs much higher damages (more money) than their case is worth. Plaintiffs fear that they will get less than what the settlement offer was and have to shell out more in litigation expenses and attorneys' fees.
Plaintiffs and defendants (and their lawyers and insurers) settle over 90% of cases to avoid unexpected results and control their risks. In most cases, especially when liability and damages are pretty clear-cut, there is no need to roll the dice and pay for an expensive trial.
Litigation is expensive. Cases can go on for years and the costs can really add up. In addition to paying attorneys' fees, plaintiffs and defendants (or, more likely, their insurers) have to pay for things like court costs, depositions, expert witness fees, and travel expenses.
Learn more about the cost of taking your personal injury case to court.
Plaintiffs might not have time to wait for the litigation process to play out. Plaintiffs, particularly seriously injured ones, often have medical bills piling up and lost income. The sooner the case settles, the sooner plaintiffs can get out of potentially crushing debt and move on with their lives.
Collecting a settlement is often easier (and more certain) than collecting a judgment after trial. After settling a car accident case, you’ll probably just need to wait for the check to come in the mail or get automatically deposited in your account. If you go to trial and win, the defendant might appeal and it might take a year or more for the appeal to be decided. If the amount of the judgment exceeds the defendant's insurance coverage and the defendant has limited assets, you might not be able to collect at all.
Most attorneys for plaintiffs get paid through a contingency fee agreement. The most common arrangement is for the attorney to get around 33% of any pre-trial settlement and 40% or more after trial begins. The sooner the case settles, the sooner the plaintiff’s attorney gets paid. Overall, a quicker settlement is usually more profitable for a plaintiff’s attorney because trials and pre-trial preparation require so much time with no guarantee of a better outcome.
From a practical perspective, law offices aren’t set up for every case to go to trial. Attorneys typically juggle dozens of cases at once. If every single case went to trial, lawyers wouldn’t have enough hours in the day to fully work up each case. The criminal justice system is similar. If most criminal cases didn’t end with a plea bargain, the system would collapse under its own weight.
If you are injured in a car accident, you have a right to be compensated for your injuries. After you start a car accident claim, you’ll want to:
You might receive a settlement offer pretty quickly or you might need to negotiate for a better settlement. If you have questions about the settlement process and the value of your claim, talk to a lawyer before you accept an offer. Learn more about how an attorney can help with your car accident claim.
It's pretty common for insurance adjusters to start negotiations with a very low settlement offer. Like a bargain shopper at a flea market, most adjusters will try to get a sense of whether you know how much your claim is worth.
If the offer is unreasonably low, ask the adjuster to give you specific reasons why the offer is so low. Then respond to each reason in a letter. If the adjuster has some valid points, you can lower your demand, but not until the adjuster responds to your letter.
If the offer is low but reasonable, you can make a counteroffer right away. A little more bargaining should help you quickly settle your car accident claim.
No two car accident claims are exactly the same so there is no way to know what the value of your claim will be or how long the settlement process will take. Liability insurance typically pays for injuries and property damage caused by the policyholder. According to Insurance Information Institute statistics, the average car accident liability claim in 2020 was $20,235 for bodily injury and $4,711 for property damage.
Martindale-Nolo surveyed readers across the United States about their experiences with car accident claims from 2015 through 2020. The overall average settlement award was $23,900, but most readers received less than $10,000. More than a third of readers (35%) received $5,000 or less, while just under a quarter (23%) received $20,000 or more. Readers who suffered injuries received an average award of $29,700, while the average for those who had no injuries was $16,700.
Notably, nearly all readers received their money as part of a settlement (98%) and not as a court award after trial. Legal representation vastly improved the outcome of readers' claims. The average payout for readers without lawyers was $13,900, while the average payout for readers with lawyers was $44,600.
Most cases resolve pretty quickly. In the same Martindale-Nolo survey, more than half of the readers surveyed (56%) resolved their personal injury claims within six months after their car accident. The average time it took to receive a car accident settlement was just under a year (10.7 months).
Faster isn’t always better. Readers who sent demand letters and negotiated their claims took longer on average to reach a settlement (17 months) than those who didn't (8.8 months), but received average settlements that were nearly twice as high. Factors like having an attorney and having injuries can also extend the time it takes to reach a settlement, but tend to lead to higher payouts.
]]>Many fatal car accidents are the result of human error, such as distracted driving, speeding, and driving under the influence, so it follows that a wrongful death claim forms the basis of many car accident lawsuits. This article will cover:
Wrongful death is a type of legal claim that arises when someone dies due to the careless (negligent), reckless, or intentional act of another.
Wrongful death is a civil legal claim. So if someone is liable for wrongful death, they’re not facing criminal penalties. Instead, a finding of liability leads to an order to pay damages in the form of money. In some situations, a person can face both criminal prosecution and a civil lawsuit for wrongful death based on the same incident, but that's a rare occurrence in the context of a car accident.
To bring a successful wrongful death claim, a plaintiff must usually prove:
Get the basics on proving wrongful death in a civil lawsuit.
If a family member dies in a car accident that someone else caused, you may have a wrongful death claim against the at-fault driver. Depending on the rules of civil court where you live, you might file a personal injury lawsuit and include wrongful death as a claim, or "cause of action" in the language of the law. Or you might file a standard civil lawsuit, citing your state's wrongful death statute as the basis for the case. Either way, as the plaintiff, you’ll need to be ready to present evidence proving the elements that make up a wrongful death claim (likely similar to the three elements we set out in the previous section).
Although every case is different, typically only one or two key elements are contested in a wrongful death claim. For instance, imagine an accident where a vehicle driver hits a bicyclist. The bicyclist dies, and a surviving family member sues the driver for wrongful death.
To successfully sue the driver of the vehicle, the key issue might be the third element, causation. It’s clear that the driver has a duty to pay attention to the road and not get distracted by unnecessary actions, like sending a text message. But the driver denies that they were using their phone at the time of the accident.
However, with the help of phone records, text message time stamps, and traffic cameras, the plaintiff might be able to show that when the driver hit the cyclist, they were in the middle of typing out a text message.
Each state has different rules on who can file a wrongful death case. Generally speaking, only immediate family members can bring a wrongful death suit. This includes parents, if the decedent was a minor child, or spouses, if the decedent was a spouse. And in cases when the decedent is a single adult, a more distant family member, like a grandparent, can sometimes bring the wrongful death claim. Get more details on who can file a wrongful death lawsuit.
There is no readily available data when it comes to the average payout amount for wrongful death cases stemming from car accidents. Even if this information were available, it wouldn’t be that helpful, since every case is unique. It might be more beneficial to focus on the key factors that typically carry the most weight when it comes to the value of a wrongful death claim, including:
Another reason wrongful death compensation figures are elusive is that most cases settle before trial, usually with the settlement amount remaining confidential. In some situations, a “slam dunk” case is more likely to settle because the defendant knows they’ll probably lose. And they might get away with paying a slightly lower amount by settling early as opposed to taking their chances at trial.
But on the other side of things, a weak case might be more likely to settle because the plaintiff understands the longshot nature of the claim and is willing to accept a lower settlement amount to guarantee some sort of recovery.
Settlement of a wrongful death claim can occur at any point on the personal injury lawsuit timeline. It might take place when negotiating with the at-fault party’s insurance company. Or it might settle only after someone files a wrongful death lawsuit. In some cases, it will settle the night before the trial. But regardless of when the settlement takes place, it will probably be after extensive negotiations with the plaintiff providing evidence and information to justify the settlement demand.
For example, a plaintiff suing for the wrongful death of a spouse might have to hire special experts. They would testify and write reports as to how much longer the defendant might have lived and how much money they might have made until they died. The plaintiff would also have to produce bills and invoices. These would show the cost of funeral arrangements or medical care before the decedent died. And if the plaintiff is asking for compensation due to loss of household services (like completing yard work and household chores), they might have to provide estimates as to their economic value.
For details on wrongful death lawsuits where you live, including rules on who can file these kinds of claims, and the types of damages that might be available, check out Nolo's state-specific wrongful death article collection.
If you’re thinking about filing a wrongful death lawsuit, your best first step might be discussing your situation with a personal injury attorney. An experienced lawyer can help you determine the strengths and weaknesses of your case, and help to ensure the best outcome. Learn more about finding the right personal injury lawyer for you and your case. You can also use the features on this page to connect with an injury lawyer near you.
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Most car accident cases settle through the car insurance claim process, without a lawsuit ever being filed in court. However, if there is a dispute as to who was at fault for the crash, or the scope and extent of an injured person's damages, a car accident lawsuit becomes a distinct possibility.
The litigation process for each case will differ based on any number of factors, but the standard timeline of a personal injury lawsuit provides a rough idea of how long things can take.
It only takes a few moments to file a complaint with the court, but getting the facts necessary to prepare a complaint could take several days or even a few months. One thing the plaintiff needs to worry about is filing the complaint before the applicable statute of limitation expires. That's the law that sets the deadline for filing a lawsuit.
After filing the complaint, the plaintiff must serve a copy of it on the defendant. This usually takes a few weeks to complete, but can take longer if the defendant is particularly hard to track down. If it takes extra time to serve the defendant, the plaintiff will often have to ask the court for an extension.
Depending on the court where the lawsuit is pending, the defendant will have about one month to file its answer to the plaintiff’s complaint. The answer is the plaintiff’s opportunity to respond to the plaintiff’s allegations. It’s also where the defendant can list out any affirmative defenses or counterclaims.
Each side will request and exchange information that can serve as potential evidence at trial. Discovery almost always needs at least a few months to complete, but can sometimes take up to a year or more, especially if there are disputes over a party’s access to certain information.
A car accident case can settle almost immediately after the plaintiff files the complaint, or it can settle after a trial finishes. Often, a case will settle after one side learns or reveals important information that could potentially decide the case. This is why most settlements don’t happen until discovery is complete. (Car accident cases in particular tend to settle via the insurance claim process, perhaps after a few weeks or months, but once a lawsuit is filed, settlement is unlikely until the parties complete discovery.)
For example, if the defendant initially denies causing the accident, but during discovery video evidence emerges showing the defendant running a red light, there’s no longer a liability dispute. Assuming each side agrees on the extent of the plaintiff’s damages, the chances are pretty good the case will settle very soon after the deposition. Even if this revelation means the plaintiff has a slam dunk case, the plaintiff will often agree to settle now to avoid the uncertainty of trial
Given how long it usually takes to complete discovery, most cases settle within a few months to a few years after the lawsuit commences.
A trial starts with the plaintiff presenting evidence to support their allegations. This evidence will typically take the form of eyewitness and expert testimony and the submission of relevant documents, like photographs and medical records. After the plaintiff finishes, it’s the defendant’s turn to present evidence to refute what the plaintiff just claimed. A car accident trial usually only takes a day or two to complete.
If one of the parties isn’t happy with the result of the trial, an appeal is possible. There are several levels of appeals—even just one level of appeal could take six months to a year to resolve. Sometimes, a defendant uses the prospect of appeal as leverage to settle a case. They threaten a lengthy and expensive appeal unless the plaintiff agrees to accept a settlement amount that’s less than what the plaintiff might reasonably expect to win at trial.
The above timeline actually leaves out several phases of litigation that can add yet another several months to the overall car accident case process. For example, before the defendant answers the complaint, she may file a motion to dismiss in an attempt to win the case before she has to file an answer. Or once discovery is complete, but before trial, a party might try to win the case by filing a motion for summary judgment.
From start to finish, a car accident lawsuit will probably take at least one year to complete, assuming it goes to trial and there is no appeal. But just because a car accident lawsuit has begun, it doesn’t mean it will go to completion. In fact, that's very unlikely, as most car accident lawsuits settle before trial.
If all car accidents cases were only about the money, it would be easier to predict how long they might take to complete. But some plaintiffs may be fighting based on principle, and the lawsuit may represent an opportunity to get justice.
On the other side, defendants may recognize they have a losing case, but want to make things as difficult as possible for the plaintiff, and therefore drag out the case as long as possible. It's a practical reality that when things get personal, the litigation process can take much longer than necessary.
Whatever lies ahead for your car accident case, it's crucial to have a car accident lawyer on your side. Discussing the details of your situation with an experienced legal professional is the best way to get a sense of how your specific claim timeline might play out, and how much your car accident case might be worth.
]]>Even low-speed collisions can cause back injuries because the human body simply isn’t designed to absorb the jarring impact of a car accident. And in turn, even a seemingly minor back injury can have a significant impact on your daily life. In this article, we’ll cover:
The spine can be divided into three distinct areas: cervical vertebrae (neck), thoracic vertebrae (upper back), and lumbar vertebrae (lower back). Each section of the spinal cord and its vertebrae are surrounded by discs, muscles, tendons, ligaments, and nerves. Injuries to any of these bones, discs, and soft tissues can cause varying degrees of pain—from mild to debilitating, and from temporary to permanent.
Injuries to the thoracic spine tend to be serious back injuries. The thoracic spine, or upper back, connects to the ribs and chest region. Sprains and fractures in this area are usually caused by high-velocity auto accidents, and can lead to permanent nerve damage.
The lumbar spine is comprised of the five largest vertebrae and the strongest of the muscles necessary to provide stability for the spine. Therefore, a sprain or strain to the lumbar spine can prove particularly painful. A sprain involves actual damage to the ligaments, while a strain is a stretching of the ligaments, tendons, and muscles. Sprains and strains can cause swelling, bruising, and tenderness. They might also limit movement and severely impact your ability to perform daily activities.
Some car accident victims experience herniated discs. Discs are the cushions that separate the vertebrae and protect the spine. A herniated disc occurs when a disc is displaced. Often, the herniated disc then places pressure on the spinal cord and its surrounding nerves. Sudden and intense pain in the lower region of the back and numbness in the legs are the most commonly reported symptoms.
The most serious back injuries involve the spinal cord. A spinal cord injury—damage to any part of the spinal cord or nerves at the end of the spinal canal—often causes permanent changes in strength, sensation, and other body functions below the site of the injury. Some spinal cord injuries cause total or partial paralysis. Further, depending on the type of injury or treatment received, victims of spinal cord injuries might be at risk for secondary medical problems, like infection, blood clots, pneumonia, and spinal fluid leaks.
Some people experience severe back pain or restricted mobility immediately after a crash. Others develop symptoms over days or even weeks (see below). Back injuries typically cause one or more of the following symptoms:
Many people assume back pain will resolve on its own within a few days. But even minor back injuries have the potential to cause chronic pain and mobility limitations if left untreated.
After a car accident, doctors diagnose and assess the severity of back injuries through the use of x-rays, CT scans, MRIs, myelograms, and bone scans. Once a diagnosis is made, treatment varies according to the type and severity of the injury sustained. Many back injuries require only short-term, temporary treatments like pain medication, injections for inflammation, physical therapy, and chiropractic care.
Serious back injuries might require surgery to alleviate pressure on the spinal cord itself or the surrounding nerves. Some back surgeries involve removing parts of vertebrae, and even fusing vertebrae together after the removal of a ruptured disk.
Typical compensation for a back injury claim covers an injured person’s economic and non-economic losses (damages). Damages can include:
The value of your back injury claim might also depend on who was at fault for the car accident and whether you took reasonable steps to minimize the financial impact of your back injury (“mitigate damages”).
After a car accident, you have the legal right to seek compensation for your injuries and losses by filing a car accident lawsuit in court. Most people, however, try to file a personal injury insurance claim first. As soon as possible, contact your insurance company to report that you’ve been injured in an accident. If the other driver was clearly at fault, you might also want to report the accident to the other driver’s insurance company. Be careful when you speak to the other driver’s insurance company—they represent the other party’s interests, not yours.
Most car accident claims settle at some point during the insurance claim process. The first step is to calculate your back injury settlement value and then you can devise a strategy to negotiate for the full value of your claim.
Consider hiring a lawyer to make your best case for compensation during settlement negotiations or in court. A skilled legal professional will help you gather evidence, make sure every loss is included in your claim, and negotiate with insurance adjusters and defense attorneys on your behalf. Find out more about how an attorney can help with your car accident claim and get tips on finding the right personal injury lawyer.
]]>Insurance adjusters and attorneys often give a lot of weight to what's in the police report, especially if the officer's findings indicate that one driver bears most (or all) of the fault for the car accident. So a police report can be a crucial piece of the car insurance claim or car accident lawsuit puzzle. In this article, we'll cover:
In the context of a car accident case, a police report is a written document that is usually generated at the scene of the crash, typically by the responding law enforcement officer. The police report often contains:
As we touched on above, a police report is generated by the investigating officer who responds to a request for assistance at the scene of a car accident. The police report is a summary of information regarding the crash—usually containing facts related to the accident and opinions of the investigating officer.
There are two ways to obtain a police report. One way will cost you money, the other probably won't.
To get a paid copy of the police report, you need to make a request from the local law enforcement office that drafted the report. Before leaving the scene of the crash, the investigating officer typically will hand you a receipt with the identification number for the police report. Call the traffic division of the local law enforcement agency that responded to the scene of the car accident, pay the administrative fee (which is usually around $15), and you should have no problem obtaining a copy.
If you don't have or don't know the identification number for the police report, you can provide the date, time, and location of the car accident, along with your name, to assist in locating the report.
The best way to get a free copy of the police report is to ask the insurance adjuster who's handling your claim if they requested the report, and ask for a copy.
Regardless of how you obtain the police report, it may take a few weeks for the investigating officer to complete the report, and for it to become available.
At the scene of the car accident, if you pay close attention you may notice the investigating officer inspecting vehicles, talking to people, measuring distances, writing notes, and taking photographs. The officer is taking some or all of these steps in preparation for drafting the police report. In short, the police report is a summary of the police officer's investigation of the accident. The report will often contain some or all of the following information:
The information contained in the police report can be a fact or an opinion. For example, the date, time, and location of the collision are facts. Fault determinations (i.e. who caused the car accident) are the opinions of the police officer.
Regardless of what's included in the police report, the insurance company, through its own investigation, will come to its own conclusion (also an opinion) as to who was at fault for the accident.
After a car accident, when a claim is reported, the insurance company will conduct its own investigation. One of the first things an insurance company will ask for is the police report. This is because, as we discussed above, the report contains a vast amount of information pertaining to the car accident.
Sometimes the insurance company and police officer's opinions are different. This is why there are times when the police report is in your favor in terms of a fault determination, but the other driver's insurance company still denies your insurance claim.
Learn more about the role of insurance in a car accident case, and how insurance companies investigate a car accident.
Not necessarily. Even if the report includes the responding officer's conclusions about fault, or states that a traffic ticket was issued to one of the drivers, the report isn't a final determination of liability. The report will carry a lot of weight during settlement negotiations with an insurance company, and in any personal injury lawsuit. If you're on the right side of any fault finding, and the officer stated that the other driver caused the accident, the report can be a pretty big asset
But what if the report points the finger squarely at you? The other driver's insurance company may try to use the report to bully you into a quick (and low) settlement. If you find yourself in this position, it may be an uphill battle, but there are ways to challenge what's in the report.
Always ask what sort of information the officer received. and from whom. Does the report say that you were travelling 55 miles in a 35 zone just because that's what the other driver said, even though you know that's not true? Was the officer relying on a witness who said the light was red, when that witness may not have been in a position to see the traffic signal?
Another potential avenue of attack is to weigh the officer's training against their findings in the report. Perhaps the best example of this is skid mark analysis. If the report includes estimates of things like vehicle speed and stopping distance based on the location and characteristics of skid marks, make sure the responding officer was properly trained to make such a call. The same concept can be applied to other special measurements and conjectures found in the report. Learn more about what to do if you disagree with the police report after a car accident.
While police reports are commonly used in car insurance settlement talks, admitting a police report as evidence when you file a car accident lawsuit is not quite as clear cut.
In small claims courts, litigants are usually permitted to use police reports as evidence in their car accident case. You will not be expected to know all the rules of evidence, so judges typically will allow plaintiffs and defendants to use the police report in explaining what happened.
If your car accident case goes to trial in your state's court of general jurisdiction (sometimes called a "superior court" or "circuit court"), you should know that parties in these cases are held to the rules of evidence and must contend with whether the police report falls within the rule against “hearsay” evidence, which keeps out many out-of-court statements—by definition, any assertion made in a police report is a statement that was made out of court.
In some jurisdictions, the police report may fall within the “public records” or “business records” exception for admissibility. In other jurisdictions, different exceptions to the hearsay rule may apply and allow you to admit some or all of the police report as evidence.
After any kind of car accident, if you decide to make an insurance claim or file a lawsuit, the information contained in the police report can have a big effect on two key issues:
If the police report isn't helpful to your position, or if there are early signs that the other side is digging in for a fight, having an attorney on your side can be critical. Learn more about how a car accident attorney can help, and get tips on finding the right injury lawyer for you and your case.
]]>Once those initial filings are done, the lawsuit moves into the next stage, called “Discovery." This is by far the lengthiest phase of the lawsuit. The purpose of discovery is to allow both sides to exchange information and documentation about their respective claims and defenses.
The first step in discovery is usually the exchange of written documentation that relates to, or was generated as a result of, the car accident. That could include medical records, medical bills, witness statements, police reports, and photographs of the accident scene.
Another discovery tool is interrogatories, which are written questions sent from one party to another. Learn more about Interrogatories in Car Accident Cases.
Another method to obtain information relevant to a car accident case is through depositions. In a deposition, a party (usually through an attorney) is allowed to ask oral questions of another person who has information that is pertinent to something having to do with the car accident.
Depositions may be taken of a variety or persons including
There really is no limit to the types of persons who can be deposed as part of a car accident lawsuit. Typically, the only requirement is that the deponent possess information related to the lawsuit.
Depositions can be conducted anywhere, but most court rules require that the deposition be held at a location reasonably close to where the witness resides. So, if the witness lives in Chicago, the witness typically cannot be forced to travel to New York for a deposition, though there are exceptions to this rule. The deposition usually occurs in the office of one of the attorneys involved in the lawsuit, though this is not a specific requirement. Depositions can be held almost anywhere, including courthouse libraries, business conference rooms, a doctor’s office, or even in the living room at the witness’s residence.
Normally depositions are attended by only a handful of people. These usually include:
This last person, the court reporter, is a very important part of the deposition process. The testimony in every deposition is given under oath. Through the course of the deposition the court reporter utilizes a recording machine to record every word that is said by every person present at the deposition.
Giving testimony under oath means that the testimony is given under penalty of perjury. So, if the witness is later found to have given knowingly false testimony (versus an honest mistake), the witness can be subject to civil or criminal penalties.
Once the deposition begins, the attorney requesting the deposition starts by asking the witness basic questions about his or her identity and connection to the lawsuit.
From there, the types of questions depend largely on the purpose behind the deposition. For example, if the witness is the Plaintiff who is claiming injuries, this may be the defense attorney’s first opportunity to learn in detail about the nature of the injuries. The attorney may also want to know what the witness observed as the car accident occurred.
If the witness is one of the Plaintiff’s treating physicians, the attorney may wish to find out about the medical treatment that has been provided, and also about the prognosis for recovery from the injuries.
Sometimes the parties may wish to depose the investigating law enforcement officer to discover in more detail the officer’s observations while at the accident scene.
A deposition usually concludes within a few hours, though this is not a requirement. Each state has different rules governing depositions and the length of time parties are allowed to take in asking questions.
Each state also has rules addressing the notice that is required to other parties prior to a deposition. If, for example, you are a person who might give deposition testimony as part of a car accident case, you usually do not have to worry that you will receive notice on one day requiring you to appear for a deposition the very next morning. Most states require notice of at least five business days before a witness must appear at a deposition.
More often than not, depositions are typically scheduled by agreement among the parties, so as to allow for as little interference as possible with a witness’ work or school schedule, or other obligations.
Learn more about the different steps involved in Resolving a Car Accident Claim.
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