The insurance company will commonly attempt to negotiate with you before you hire a personal injury lawyer. It might even discourage you from hiring one because that is best for the insurer. But it will usually make an offer that is only a fraction of the true value of your claim. The insurer will often make an offer while you are still treating with a physician, and before the physician has really even determined the extent of your injury, your prognosis or whether or not any aspects of your injury are permanent. Obviously, it is impossible to know what a fair settlement is without yet knowing how badly you are hurt.
Even after you hire an attorney, the insurance company will often use pre-lawsuit “negotiations” to gather as much information as they can about you, your attorney and your treating doctors. An experienced attorney can determine fairly quickly whether continued pre-lawsuit negotiations are a waste of time and effort.
If your attorney determines that pre-lawsuit negotiations are futile, he or she should file a lawsuit immediately and begin preparing the case for trial. After the lawsuit is filed, the court will set a future trial date and various deadlines for the attorneys to accomplish different phases of case preparation. Facing a looming trial date will sometimes begin to motivate the insurance company to become more reasonable in settlement negotiations. It knows that as your trial date approaches, either they will reach a settlement acceptable to you, or a judge or jury will soon determine the value of the case for everyone. The risk of an unknown verdict can be a powerful motivation.
To begin a lawsuit, your attorney must file what is called a “petition” in state court, or a “complaint” in federal court. The nature and location of the accident and parties (claimants and defendants) will determine which is the proper court. The petition or complaint names the proper defendants (those at fault in causing your injury and their insurers) and describes your injuries. It also describes the factual and legal bases for the defendants’ liability to you. The petition or complaint must then be properly served upon each defendant.
The law only allows a certain amount of time to pass after your accident before you must either settle your case or file a lawsuit. In Louisiana, with some exceptions, this time is one year from the date of the accident. Any claim filed after the deadline is considered time-barred by “prescription” or “statute of limitations.”
Waiting to settle your claim or file suit until just before the deadline expires can be a dangerous practice. For instance, you may attempt to settle with the insurance company unsuccessfully until just before the deadline for filing. If you seek to hire an attorney too late in the process, the attorney may not have time to appropriately investigate to determine all potential defendants and confirm their correct names. If a defendant is incorrectly named, or if your lawsuit is filed in the wrong court, it could result in the dismissal of your case. For this reason, the sooner you get the advice of an attorney, the better.
Once the lawsuit is served upon the defendants, the defendants must each file an “answer” with the court, usually denying that you are entitled to any recovery at all. After answers are filed, the “discovery” process of litigation begins. The discovery process permits each side to investigate, determine and evaluate what evidence and witnesses the other side may use at trial. Typically, each side sends the other side written questions to be answered under oath, called interrogatories, request for production of documents and other tangible items of evidence and request for admissions.
When you file a personal injury lawsuit, the other side is also permitted to obtain your medical records, work history, criminal record (if any) and financial records if you are claiming loss of income. They can generally obtain these records even if they pre-date the accident in question.
In a personal injury case, the other side is often permitted to have you submit to a doctor of its choosing for examination, called an “independent medical examination.” This is also part of the discovery phase. The defendant wants to determine whether a doctor of its own choosing agrees with the opinions of your treating physicians on issues such as diagnosis, prognosis, extent of injury, causation between the accident and injury, permanency of any aspect of the injury and how it may affect your work or other activities, the expected cost of any future medical care, etc. Again, the insurance company is looking to create reasons to dispute any aspect of your claimed injury. In my office, we sometimes will not voluntarily submit to an independent medical examination unless we agree with the defendant on several conditions and restrictions that will govern the examination.
The discovery process will also usually include depositions. Depositions can be taken of the parties (you included), independent fact witnesses, physicians, other medical personnel and other expert witnesses. The party or witness being deposed answers questions under oath before a court reporter, who transcribes all questions and answers word-for-word. Anyone who testifies untruthfully can be prosecuted for perjury. The attorneys will later receive a copy of the transcript for trial preparation.
All parties and attorneys are permitted to be present at any deposition. But you are only required to be present at your own. If you are deposed, your attorney should prepare you in advance for exactly what to expect in the deposition. It will usually take place in a conference room at his or her office. How the insurance company assesses your deposition testimony can have great influence on the likelihood of a reasonable settlement before trial.
The length of time involved in the discovery phase will vary from case to case, depending upon its complexity. After the discovery phase is completed, each side has a good idea of the evidence the other side will offer at trial. The defendant insurance company will sometimes then engage in further and more meaningful attempts to resolve the case, and may ask for mediation. Mediation is a voluntary process where the parties agree to hire and meet with a neutral mediator (usually an experienced attorney or retired judge) to assist the parties in reaching a settlement. Mediation is often, but not always, successful. A mediation may take as little as one day or as long as several days, depending upon the complexity of the case.
If all attempts to settle the case are unsuccessful, the case proceeds to trial. The attorneys will be required to exchange and provide to the court witness and exhibit lists. They will further be required to exchange copies of the actual exhibits to be used at trial. They may also file with the court motions to exclude certain evidence, trial memoranda and proposed jury instructions that they wish for the judge to read to the jury at the conclusion of the evidence and closing arguments. The attorneys must also issue subpoenas commanding their witnesses to appear at trial.
Following graduation from Loyola Law School in New Orleans in 1990, Price McNamara served as a Federal Judicial Law Clerk to the Honorable John M Shaw, Chief Judge, United States District Court Western District of Louisiana.
Mr. McNamara founded J. Price McNamara ERISA Insurance Claim Attorney, and began putting his past experience to work for the injured and disabled clients he now represents against the insurance companies in personal injury and long term disability and other insurance disputes in both federal and state courts