Experienced Motorcycle Accident Lawyer in Colorado Springs
Over the years, I’ve seen several well-intentioned accident victims make errors that either entirely wrecked their ability to submit a claim or significantly reduced the amount of compensation they were able to obtain in compensation.
Whenever you’re involved in civil litigation, it’s important to remember that conduct that seems normal and rational at the time may be detrimental to your case when you find yourself in front of a judge, jury, or insurance company.
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Start Here After a Motorcycle Accident
These are the most typical accidents we see in personal injury cases, according to my experience:
The client must wait many days or perhaps weeks before receiving medical attention. If you have been seriously injured in an accident, you must get medical attention as soon as possible. People may sometimes put off seeking medical attention after being involved in an accident, believing that their health or discomfort would eventually improve or lessen.
However, if this does not occur, and you visit a doctor for the first time many days or weeks after the accident, it may be exceedingly difficult to demonstrate that your injury was caused by the event and not by anything else in your life. Being “stoic” at this period might potentially work against you if your ailment turns out to be more serious than you anticipated.
Generally speaking, the longer you wait after being involved in an accident before seeking medical attention, the more difficult it may be to establish either that your damage was caused by the accident or that your condition is serious enough to warrant filing a compensation claim. A jury expects that an injured individual will seek medical attention as soon as possible after the accident, especially if you want to seek compensation for the damage.
The client is directed to a doctor by an attorney as soon as possible after the accident. In the early aftermath of an accident, jurors are very distrustful of persons who are directed to a doctor by their lawyer, especially if this is the first and only doctor they have visited.
Lawyers and physicians who have “referral” ties with their clients that last for many years are also viewed skeptically by jurors. The credibility of a doctor who has treated a large number of the lawyer’s clients in the last year becomes very questionable in the eyes of the jury.
Many times, jurors may reject a doctor’s evidence if they perceive the doctor has an unduly close connection with the lawyer representing the patient. Of course, there are certain exceptions. This is typically not an issue if, for example, your lawyer sends you to see a doctor for a “second opinion,” or if your lawyer recommends a group of experts or physicians to treat your injuries long after the event has taken place.
A medical expert who examines you for the aim of supporting the lawyer’s appraisal of the case or testifying as an expert in court is appropriate in the eyes of the law. There are no hard and fast laws in this area, thus the outcome of each case will be determined by the circumstances of the particular case.
The client does not contact the police because he or she is unable to acquire adequate information at the accident site. The failure to get proper information on the other motorist, such as their current address, driving license number, insurance details (and so on), might result in serious consequences.
If you did not get precise information at the site of the accident, how is your lawyer meant to discover and locate the at-fault motorist to file a lawsuit? Not alerting the police after an accident may also be a major concern, particularly if there is a disagreement regarding who was at fault.
Most of the time, the police officer will take down important information as well as statements from witnesses, and then file a report with the proper agency. You will be able to acquire the report at a later date and have it utilized by your attorney. If you have access to a camera, capturing photographs of the cars and the accident area may be of use.
The client provides the insurance company for the at-fault motorist with an excessive amount of information immediately after the collision. You may be asked to provide a “recorded statement” and sign medical authorizations, which will enable the other insurance company to obtain your current and past medical data, among other things.
This is a serious oversight. You may make what looks to be harmless words at first, but these statements may subsequently be used against you to diminish your injuries or to weaken your case.
Giving the insurance company a medical release so that it may dig into your prior medical history might also provide them with ammo to reject your claim or downplay your injuries, which they can use against you. It’s not something I’d do.
When the client’s injuries look to be substantial, the client refuses to employ an attorney or delays obtaining an attorney. If the claim is significant enough to need the intervention of a personal injury attorney, it is typically advisable to retain an attorney as early in the process as possible.
The personal injury attorney can often predict possible issues or insurance company defenses very early in the claim process and may take steps to prevent or reduce the effect of such problems or defenses. However, if a client waits until months or years after the disaster and certain blunders or difficulties arise, the attorney will be forced to deal with whatever has occurred.
Every year, I have a small number of instances where had the client engaged me earlier in the process, it may have meant the difference between receiving tens of thousands of dollars more in settlement (and this is after subtracting my fee!).
The client conceals previous accidents from the attorney. As soon as you file a lawsuit, the opposing party is given the right to investigate your previous accident history to assess if your injury or condition might have been caused by another accident.
Usually, the other party already has a great deal of knowledge about your previous collisions. The insurance business maintains a large database of information on individuals who have been involved in earlier accidents and filed claims on their behalf.
If you fail to disclose a past accident history, either to your attorney or to the insurance company, it may significantly harm, if not destroy, your claim.
The client fails to disclose previous injuries or medical issues to the attorney. This should be self-evident. You must notify your attorney of any injuries or medical issues that existed
before the event. In the event, if you saw a doctor before the accident, you may be certain that there is a written record (i.e., chart notation) that details it in full. If your lawyer is aware of your past medical history from the outset of the case, he or she may take steps to remedy the situation or at the very least appropriately handle the case to limit the negative impact on your present case.
In contrast, if you keep this information a secret and your lawyer discovers it later, you will either lose your case or be dismissed as a client.
The client makes defamatory assertions to the doctor, which are recorded in the medical records. You should be aware that any statement you make to your doctor may be recorded in your medical records, which will serve as a permanent “record” in the case against you.
The use of phrases like “not that terrible” or “minor” or “bump” or “fender bender” might come back to haunt you if your injuries turn out to be more severe than you first believed, or if your case is ever brought before a jury.
The client fails to show up for medical visits or has “gaps” in their treatment regimen. The case might be badly harmed if a client fails to show up for sessions or discontinues therapy only to restart it many weeks or months later. If a person skips a significant number of medical visits, jurors are unlikely to think the person is injured.
As a result, proving that therapy taken after a considerable “gap” in time after the injury was truly caused by the event may prove to be exceedingly challenging. Whenever individuals discontinue medical care for an extended length of time, jurors are more likely to assume that the person has healed from their injuries.
The client exaggerates the degree of activity that he or she is participating in. Individuals who claim that they have been harmed in an accident are frequently monitored by private detectives hired by insurance firms.
With technological advancements (such as small cameras and video recorders), it is becoming more simple to capture your public behavior. You and your case will be ruined if you misrepresent your restrictions or level of activity to your lawyer or physicians, and the insurance company can show jurors contradicting “hidden camera” film as a result of your actions. Please don’t do that.
The Life Cycle of a Case
Hollywood enjoys dramatizing court matters, but the bulk of your case will not revolve around dramatic speeches or the disclosure of shocking facts. Personal injury claims may take months, if not years, to resolve. As a plaintiff, it’s natural to get upset because you feel pressured to “hurry up and wait” while healing from one of the most terrible experiences of your life.
This website will walk you through the case’s life cycle. Bear in mind that not all cases will unfold in the same chronological sequence. If you are unsure about the duration of your case, consult with your attorney about their plans and expectations.
Recognize Your Hurts and Losses
In personal injury law, the offender (sometimes referred to as a tortfeasor) is held accountable for any damage caused by his or her carelessness or other illegal behavior. If you suffer an
injury as a consequence of such an act, you are entitled to get full compensation for your injuries and losses. The objective of the legislation is to compensate the aggrieved party. That is, the objective of monetary compensation is to attempt to return you and your family to their pre-accident state.
Once it is established that the accident was caused by the wrongdoer, an expert personal injury lawyer can assist you in thoroughly identifying and comprehending your injuries. Your legal firm will gather and study your medical records, as well as consult with you, your family, and even your doctors, to get a thorough understanding of your injuries and their impact on your life. Your lawyer will then be able to forecast the range of damages that a jury would award based on experience with comparable cases.
In recent years, insurance companies, their lobbyists, and large businesses have smeared personal injury victims and their attorneys with a barrage of misinformation. They do this deliberately to sway prospective jurors against personal injury victims and in favor of the individuals and insurance companies they sue.
Frequently, the media exacerbates this situation by focusing on strange or uncommon multimillion-dollar instances. This generates the false impression that the majority of persons who pursue personal injury claims earn undeserved windfalls or do not deserve the money they receive fully.
Absolutely nothing could be farther from the truth. In truth, the majority of those harmed by reckless wrongdoers are industrious Americans who were just in the wrong place at the wrong time.
Why do lawyers devote so much effort to injury investigations?
Oftentimes, comprehending your ailments may assist you in proving your case. Consider the situation of a little child who was struck by a car while riding his bicycle. The car’s driver said she was not at fault and that the youngster had merely dashed into the car’s side. Even the investigating police officer accepted the driver’s version of events and determined that the little child was at fault. There were no other eyewitnesses.
That was not the end of the inquiry, however, owing to the assistance of an experienced personal injury lawyer retained by the boy’s family. The lawyer conducted an extensive study on the specific sort of leg fracture suffered by the youngster.
To summarize, the lawyer was able to demonstrate, via medical and scientific data, that the injuries could only have happened if the car struck the kid, rather than the youngster rushing into the car. By properly comprehending the damage sustained in the attorney was able to convert a claim refused by the insurance company into a sizable recovery to meet the boy’s future expenses.
Disability, both permanent and temporary
Unfortunately, some persons suffer lasting disabilities as a result of their accidents, whether partial or whole. A permanent handicap is any loss of ability that affects the sufferer for the remainder of his or her life and impairs at least partly the victim’s capacity to work or do other daily activities.
A lifelong impairment is often a defining moment in the lives of victims and their families. Apart from the handicap itself, disabled accident victims have a greater risk of medical
consequences than undamaged individuals and often suffer severe emotional traumas as a result of their infirmities. Permanently disabled individuals may need intensive medical assistance, such as home health care nurses, comprehensive inpatient medical treatment and rehabilitation, or long-term residence in an assisted living facility.
Someone who has sustained a lifelong impairment is considerably more likely to collect a substantial judgment than someone who has completely recovered since their damages must pay them not just for past expenses, but also for skills lost and future care.
As everybody who lives in contemporary society is well aware, health care may be rather costly. Even if you have medical insurance or enough medical coverage via your car insurance policy, you may be charged thousands or even tens of thousands of dollars for a prolonged hospital stay, a trip to a specialized care facility, or repeated doctor visits and physical therapy sessions.
Without health insurance, these payments may rapidly accumulate and often surpass five or six figures in a short period. Lifelong medical care might cost millions of dollars for someone who has had a catastrophic injury or a permanent impairment.
These medical expenses are included in the damages (financial compensation) that you are entitled to recover in a personal injury claim. This does not have to be restricted to direct health care expenses; it might include any medical expense, including medicines, medical gadgets, and transportation to and from your doctor’s office. Medical expenses are a critical component of every personal injury claim.
What if I am permanently handicapped and incur continuing medical expenses?
If your case includes a catastrophic injury (one that permanently and significantly alters your life), your lawyer will seek to ascertain not just your current medical expenses, but also the expected cost of future medical care. In certain instances, your law firm may need to retain an expert to create a “life care plan” that anticipates all of your future medical requirements.
This specialist will assess your injuries, check your medical records, and estimate the future cost of medical treatment.
Income loss and diminution of earning ability
If you are unable to work as a result of your injuries, you are entitled to receive compensation for your lost income. Additionally, if you have a condition that impairs your future earning potential, you may be entitled to monetary damages for the money you would have made had you not been disabled.
For instance, suppose you are unable to do the work you were doing before the injury, but you can find one that fits your physical restrictions and pays less than your former employment job. In this situation, you would be entitled to recover not just the money lost from the previous position, but also any future earnings lost as a result of being forced to accept the lower-paying job.
If you are self-employed and your accident prevents you from working, you may need to hire someone to take your place. You may be entitled to reimbursement for any additional money paid to that individual throughout your rehabilitation.
Along with your lost earnings and diminished future earning ability, you may be entitled to compensation for any missed benefits, such as health insurance, pension plans, bonuses, or other perks directly related to your work. An expert personal injury attorney can assist you in calculating all of your financial losses to pursue compensation for them.
Your lawyer may need the assistance of specialists, such as a vocational expert (an expert in the field of labor) or an economist. These professionals will examine your financial and medical data before calculating and estimating the economic damages you have incurred as a result of the accident. If you are self-employed, you may demonstrate your economic losses using tax returns and other financial records.
Pain and Suffering
Another aspect of your injury claim is how your injuries influence your everyday life—how much pain and suffering you endure. Personal injury sufferers are entitled to compensation for their past and current pain, as well as any future suffering. These damages for pain and suffering are distinct from those for economic losses or physical injury. For instance, someone who suffers from persistent pain as a result of an accident is entitled to compensation for their suffering.
Under the law, pain and suffering are not synonymous. Physical discomfort is a sense, but suffering is a state of mind. Pain is the knowledge of anything damaging your tissues through a brain input or something else, followed by a sensation of pain or unpleasantness.
By comparison, pain is an emotion that may be thought of as the polar opposite of happiness or satisfaction. It is characterized by cognitive awareness of an unpleasant circumstance or a loss of pleasure the sufferer could have anticipated had the tragedy not occurred.
Suffering may manifest itself in a variety of ways, including sadness, anxiety, and shame. For instance, the pain might include shame and anxiety caused by disfiguring face damage, amputation, incontinence, paralysis, or any condition that substantially affects the victim’s daily activities.
Your lawyer’s goal is to assist you in demonstrating precisely how your injuries have impacted your life and family. The ultimate objective of a personal injury claim is to collect the largest amount of compensation feasible so that you may return to your pre-accident life.
Although injuries may prevent you from doing so in certain instances, you are nonetheless allowed to seek compensation for any harm you suffer. An expert personal injury attorney will assist you in obtaining the maximum amount of compensation allowable by law.
Loss of Consortium
In Colorado, the law provides for the recovery of damages by an injured person’s spouse, even if the spouse was not hurt. This is referred to as a claim for loss of consortium.
According to Black’s Law Dictionary, “consortium” refers to the “conjugal fellowship of husband and wife, including each’s entitlement to the other’s company, society, collaboration, love, and assistance in all conjugal relations.” Loss of consortium encompasses not only
physical services such as society, advice, companionship, and sexual relations that you may lose as a result of your spouse’s injury, but also intangibles such as society, guidance, companionship, and sexual relations.
Generally, you may pursue a loss of consortium claim only if one spouse has had a major injury that has had a direct detrimental impact on the marital connection. You cannot bring a claim for loss of consortium if you are not married to or cohabiting with the injured party. A married connection is required to pursue a claim for loss of consortium.
Often, under the supervision of an experienced personal injury attorney, the non-injured spouse may provide compelling testimony at trial. This demonstrates to a jury that the accident affected the marital bond as well as the family.
Juries may sometimes sympathize with the non-injured spouse and have a deeper understanding of how the injuries have impacted the marriage and other family members. A knowledgeable personal injury attorney can advise you on whether you should pursue a loss of consortium claim in addition to your injury claim.
Alternatives to lawsuit
If you’ve ever seen a courtroom drama, you may be under the impression that all legal proceedings begin with litigation. That is often not true in civil proceedings. Certain matters are too little to occupy a court’s precious time; occasionally a client requires a speedier resolution than a court can accomplish, or an insurance company is ready to pay for a claim without resorting to litigation. An experienced personal injury attorney can assist you in determining whether or not you have feasible pre-litigation settlement possibilities.
Many clients are taken aback to find that they may be able to resolve their situation without ever filing a lawsuit. Indeed, the majority of personal injury cases are resolved without the need for litigation or relatively early in the litigation process. This is because a personal injury attorney must bargain with insurance providers.
This includes your carrier as well as the firm or companies representing the other parties. A settlement may be reached more quickly if there is little or no doubt that the other motorist caused the collision and your injuries. This may also occur if responsibility is still disputed but your injuries are serious.
During the pre-litigation stage, your attorney confirms that the at-fault party is insured and then analyses if your insurance policy covers the accident. Additionally, your lawyer will research the facts surrounding the accident, including studying the police report, interviewing witnesses, and inspecting the accident site, to get the most accurate information on how the accident happened and who is at blame.
Additionally, the attorney will study your current and historical medical records to comprehend your claim and establish that your injuries were caused by the accident and not by a pre-existing medical condition.
After conducting a comprehensive investigation of your claim, your lawyer may proceed to determine the claim’s worth. When it comes to reviewing personal injury cases, there is no secret formula. In general, a case is worth the number of damages done on the aggrieved
party. These damages may be straightforward to quantify, such as past and future medical expenses, missed wages, diminished earning ability, and property loss. However, the law provides that the aggrieved party is also entitled to compensation for “intangible” damages. These “intangible” costs are sometimes more difficult to quantify. These subjective harms may include pain, agony, incapacity, loss of pleasure, discomfort, and mental distress.
The intangible injuries sustained by the accident victim are entirely subjective, impossible to quantify, and often differ amongst the individuals (or jurors) who decide the case. Finally, the jury determines the case’s worth (or a judge if no jury demand has been filed).
Both parties (your attorney and the insurance company or defense counsel) are always evaluating how a jury would see the case and the amount of money that it might award. Then, each party will assign a value or a range of values and attempt to negotiate a settlement that is within or above their respective ranges.
Oftentimes, it takes months or even years to thoroughly analyze the worth of a case. One explanation for this is that the individual’s recuperation or rehabilitation is progressing slowly. Another explanation is that the injury or ailment is complicated, which may result in a large delay in obtaining a definitive diagnosis from the treating physician. Oftentimes, a lawsuit should not be settled or concluded until the individual achieves maximal improvement after the injury, which might add to the case’s delay in reaching an acceptable settlement.
Generally, the value of a claim is determined by the degree and severity of the plaintiff’s injuries. Additionally, the kind, amount, and frequency of previous medical therapy, as well as the need for future treatment, must be considered. Additionally, I consider numerous additional aspects while determining the case value.
These factors may include, but are not limited to, the client’s suitability as a witness and credibility, the facts of the accident that gave rise to the case, the extent and permanence of the client’s injuries, the client’s age, whether the client missed time from work, the identity of the at-fault insurance company and its defense attorney, the specific legal or evidentiary issues raised in the case, the county or venue in which the case has been or will be filed, and the monetary value of the case.
It’s important to remember that no two situations are similar, even if the accident and/or injuries were almost comparable. This implies that evaluating two instances that seem to be comparable on the surface may result in very different assessments owing to the case’s other aspects.
Personal injury lawsuits need a great deal of information, experience, and some hard- won intuition. Typically, a lawyer who has tried cases in front of a jury acquires an excellent grasp of how to value any specific claim.
Without these characteristics, you may find yourself at a significant disadvantage when bargaining with the adjuster. And, unless you make a livelihood reviewing and resolving personal injury matters, you should normally seek counsel from an experienced personal injury attorney.
Often, the parties will agree to engage in alternative dispute resolution (ADR) to settle the matter without going to trial. Mediation is one sort of ADR. Mediation may be requested by
either the insurance adjuster or your attorney. Certain superior courts in Colorado even mandate parties to engage in mediation. Mediation requires the appointment of a “mediator” to help the parties in resolving their differences.
The mediator is an independent third party who is paid by both parties to assist them in resolving the matter. Mediation enables both parties to present and dispute the pertinent facts of the case, as well as the scope of the expenses and damages, to the mediator, who will then assist them in reaching an agreement.
These independent mediators are often retired judges or individuals with specific court certification, which means they should be familiar with the relevant laws and concerns in your case. Mediation is an entirely voluntary process. That is, neither party is compelled to reach an agreement during mediation.
If a settlement cannot be reached during mediation, the matter will move to litigation and eventually a trial. Failure to reach an agreement in mediation has no bearing on your right to pursue your lawsuit.
Following the pre-litigation settlement
If a settlement is achieved, whether, via negotiation or pre-litigation mediation, the insurance company will pay your attorney. Additionally, they will give you legal paperwork, sometimes referred to as a “release” and “hold harmless,” for signing. By signing these documents, you release the insurance company and the at-fault party from your injuries from any future duties or payments linked to the accident’s injuries and damages.
The keep harmless agreement requires you to indemnify the carrier and at-fault party against any liens or claims against your settlement recovery. These are normal paperwork that must be signed in the course of pursuing a personal injury claim. You must sign these documents to receive the settlement funds.
A trust account should be established for your injury attorney. This account is used to store money that belongs to others. The lawyer is obligated under the trust account to safeguard these monies on your behalf. Once the settlement money has been deposited in the trust account, your lawyer will write a settlement or closure statement for your inspection and signing. T
his is another legal document that details the entire settlement amount, as well as any deductions for fees, charges, medical bills, liens, or other sums that must be paid from the settlement profits. You will have the chance to evaluate this document and allow your lawyer to give you the settlement monies with your signature. Once you get the settlement funds, your case is effectively resolved.
Attempting to negotiate a fair payment with the insurance company is often fruitless. Insurance companies are becoming more aggressive in resolving personal injury or accident claims. Certain carriers have a reputation for making excessively low settlement offers, especially in cases of catastrophic injury.
Insurance companies often utilize pre-litigation discussions to learn as much as possible about you, your lawyer, and your physicians. This may result in an unfair advantage for the insurance provider, as well as a total waste of time and effort on the part of the insured. For these reasons, it may be prudent to file a lawsuit
promptly and then attempt to resolve the issue via negotiation. Following the filing of a case, the court will establish various timeframes, including a trial date. These deadlines, particularly a trial date, might assist in motivating the insurance company to make reasonable efforts to resolving the issue expeditiously.
While many claims are settled before the official filing of a lawsuit, there may be extra reasons to file a lawsuit sooner than typical. If there is any doubt regarding the existence of insurance or the amount of insurance, a lawsuit may be filed early to allow the lawyer to apply the discovery procedures to ascertain this information.
Occasionally, the statute of limitations mandates an immediate commencement of a case. This is the time restriction imposed by law for bringing a claim. In other situations, it may be essential to initiate litigation promptly to preserve evidence and compel the other party to make an oath or to turn over critical evidence and information in response to a subpoena.
When is the appropriate timing to bring a lawsuit?
Each state’s legislation establishes deadlines for filing lawsuits. This legislation is also known as the statute of limitations, and it is often computed from the date of your injury or the date you discovered an injury that was not immediately apparent. (They may also be extended for children and some disabled individuals.)
For example, in the state of Colorado, the statute of limitations for the majority of personal injury claims is two years from the date of the accident. This term may be shorter in the case of lawsuits against specific bodies, such as the federal government (which is three years from the date of the collision).
The statute of limitations varies by state and also varies according to the kind of lawsuit. However, these are all strict deadlines. That is, if you wait too long, regardless of how solid your case is, you will be unable to pursue it. After learning about your case, one of the first things your lawyer will do is determine the applicable statute of limitations and take any required measures to protect your ability to claim.
Additionally, some legal deadlines apply in particular specific instances. For instance, if you want to sue a government agency, you may be required to provide notice to the agency within a certain timeframe or to submit an administrative complaint before you may sue.
If a party desires to sue a government body in Colorado, he must first submit a claim with the agency and then wait sixty days before initiating the case. Failure to adhere to this guideline might result in the dismissal of your claim. Because these deadlines may be short and that failing to meet them may result in the loss of your right to sue, it is critical to become aware of them and take action as soon as possible. This is one of the reasons why personal injury attorneys desire to meet with you as soon as possible after your accident.
What happens when a lawsuit is filed?
The actual filing of the court case should be handled by your lawyer’s office. However, depending on the facts and the statutes of your state, you will file your lawsuit in the county where the accident occurred or in the county where one or both of the people involved reside. The county in which the action is lodged is sometimes referred to as the “venue.” In most
counties in Colorado, the lawsuit must be filed in the county where the claim or accident occurred, or in the county where the defendant lives or does business. Your attorney can explain how these principles apply to your particular situation.
When you submit a written complaint with the court, a lawsuit is legally initiated. This complaint details the facts of the case, your injuries, and why the defendant is liable for them. It next describes each “cause of action,” or basis for suing, individually, and concludes with a request for financial recompense for the damage you’ve detailed. This may be extremely comprehensive, depending on your state’s regulations, but it must always include sufficient information to alert the other parties of the reason for the lawsuit.
Along with the complaint, your attorney will submit a summons, which is a document that must be served physically on the defendants. The summons instructs the defendant on how to reply to the complaint and establishes a deadline for response. Your lawyer may, as a courtesy, provide a copy of the complaint to the defendant’s insurance carrier.
Following the filing of the case, your lawyer may be required to declare whether you desire a jury trial or a “bench trial,” in which the majority of decisions are made by a judge. You and your attorney should have discussed this in advance. In a jury trial, a group of randomly chosen residents from the region determines the case, while the judge serves as a referee and resolves any legal disputes that arise.
In comparison, a bench trial entails the judge adjudicating the whole case (issues of fact and legal issues). Bench trials are uncommon in comparison to jury trials. If your attorney suggests one, he or she should be able to justify the recommendation.
Who responds to a complaint?
Following the filing and service of the complaint, the defendant’s insurance company will often assign the issue internally to a litigation claims adjuster who will manage the claim. This individual’s role is to attempt to settle your claim before trial or to manage the claim in a manner that benefits the insurer throughout the trial.
Insurance companies, of course, dislike being sued; they may take further measures to resolve your claim after the filing of the case, and you may be able to settle at this point. However, for the sake of this website, we will presume that you will not immediately settle.
Additionally, the insurance company will appoint one of its attorneys to represent the defendant in court or will pay an outside attorney. The lawyer’s first step is to draft a document known as a response to the complaint. This document will either acknowledge or refute the complainant’s accusations.
The response may even indicate that more parties are responsible for your injuries and should be included in the case. Additionally, the response may include any defenses the defendant intends to use in the lawsuit to demonstrate why he or she is not liable for your injuries.
If the defendant does not respond to the complaint or does not file it promptly, you may petition the court to declare the defendant in “default.” A “default judgment” is uncommon, and it is often reversible under certain situations.
Occasionally, when a complaint is filed, the court will immediately establish a trial date. Other courts may require one of the parties to submit paperwork officially requesting a trial date from the clerk. It may take up to two years or more to get a summons to appear for trial. It is determined by the court in which the lawsuit is filed. If the court is located in a densely populated area or gets a high volume of files, the trial might be scheduled months in advance.
The process of discovery is the exchange of information about a case with the opposing party in the litigation. This is a regulated legal procedure guided by established norms. The legislation compels both parties to a lawsuit to share information regarding the case upon request. (Some items, such as confidential conversations between you and your attorney, are protected from discovery regardless of whether they are explicitly sought.)
In most circumstances, the information shared concerns your accident, your injuries, the type and expense of your health treatment, the impact of your injuries on your life and family, your career history, and your educational background.
The discovery phase is critical because it enables both parties to get acquainted with the facts and problems underlying the litigation before trial. This enables both parties to develop a case and assess their respective views’ strengths and shortcomings. The information obtained during discovery may be quite important during settlement negotiations.
Typically, the initial stage in discovery is for both parties to submit written questions for the other party to respond to. These written inquiries are referred to as interrogatories, and in many locations, you will be required to answer them under oath, even if they are not in a courtroom.
Interrogatories may consist of numerous written questions inquiring about the accident, your history, and your damages, including any prior injuries or difficulties for which you sought medical attention, as well as any prior legal claims.
Additionally, you may be required to supply information regarding any lost income or previous work. The objective is to create a narrative about the significant events in your life before and after the accident. After submitting your responses, you will sign them and they will be sent to the defendant’s attorney.
We’ve discovered that some clients first resist answering these questions because they’re personal or go into issues deemed unpleasant or irrelevant. Your lawyer has the authority and will object officially to an improper interrogatory or to a series of interrogatories that exceeds the boundaries established by court rule.
However, these questions are often asked because they are pertinent to your situation. The majority of information concerning your health and money is deemed “discoverable,” which means it is a reasonable query throughout the discovery process. Your replies assist the parties and your attorney in obtaining the information necessary to assess your claim.
Requests for admittance are another kind of textual discovery tool. This is a simple document in which one party is asked to accept or deny specific facts pertinent to the case. If you contest or decline an admissions request, you must document the facts that support your viewpoint.
Your attorney should be able to assist you with this. By using admission requests, both parties may ascertain which facts are agreed upon, which are contested, and which must be included in the case.
It is critical to react promptly to requests for admissions, since if you miss the deadline, the court may treat you as if you accepted the validity of the allegations included in the request.
Requests for the production of documents—asking the opposing party to submit copies of specified documents—is an integral aspect of the discovery process. While production requests may be accompanied by interrogatories, both parties have the right to seek the production of documents during discovery.
Production requests should be for documents pertinent to the case, the accident, or your losses. This often includes copies of your medical records, receipts or invoices for medical bills, accident reports, witness statements, and photographs of the accident site. If you are claiming income loss, you will very certainly be required to furnish tax records for many years before the injury. You may also be required to submit any notes or diaries that you have maintained.
Neither party may make a discovery request for any document that is discoverable. Your lawyer may evaluate the production request with you and assist you with copying and sending the papers to the defendant’s counsel. If your lawyer feels the request for a document is inappropriate, he or she will normally object. If no agreement is reached, the objection may be settled by the attorneys or by the court.
In addition to obtaining papers and evidence from you, the defendant’s attorney may seek information from other persons or parties. Typically, the defense counsel would immediately obtain copies of your medical records from your treating healthcare professionals.
Additionally, the defendant may be entitled to get information about you from your present and prior employment, schools you attended, and military service if you served. Additionally, if you have claimed for Social Security benefits, the defendant’s lawyer may contact the Social Security Administration to get information about your claim.
While you may feel uneasy about these demands, if the material is discoverable, the defendant’s attorney is within his or her rights to seek these records. Indeed, you may be needed to sign authorization documents approving the distribution of information.
A deposition is a face-to-face conference during which lawyers are permitted to question witnesses under oath while a court reporter records the proceedings. Any witness who may provide pertinent information about the case at trial, including you, your physicians, and your friends and family, maybe deposed. Neither party may seek a deposition at any time, although it is most likely to occur after your response to interrogatories and demands for the
production of documents. If a deposition is required, you must prepare for it with the assistance of your attorney. Your behavior during the deposition may affect the lawsuit’s worth and also the possibility that the case will settle before trial. A deposition is similar to an oral interrogatory.
Many of our clients express nervousness before depositions, which is understandable, particularly if this is your first deposition. There is, however, no need to be concerned. Throughout the deposition, your lawyer will be there to watch and may object to improper questions or request pauses if necessary.
This is critical because you must maintain your composure and professionalism during the deposition. This is the first chance for the opposing party to judge you in person, so you should seem tidy and confident. Generally, you should dress properly and modestly to give a favorable impression.
Your attorney (or his or her team) should prepare you in advance for the questions that will be asked during your deposition. You may be invited to a meeting during which you will evaluate any written material your lawyer has obtained, as well as any replies you provided to interrogatories.
Your evidence must be accurate and consistent with these interrogatory replies since the defendant’s attorney will almost certainly question you extensively about any discrepancies. This procedure should also assist in refreshing your memory on the specifics of your injury, treatment, and recovery.
You will almost certainly begin your deposition by examining the material included in your prepared interrogatory replies. The deposition provides the opposing counsel with a chance to clarify or have you explain those written responses, as well as to collect new information.
As previously stated, your testimony must be accurate and consistent with your interrogatory replies, so that the opposing counsel does not detect an apparent conflict between your oral and written evidence. Your responses should be based on your own experience; do not make educated guesses.
If you are unable to recall or know the answer to a question, you should state so. Many individuals are ashamed to say they don’t know something or experienced a memory lapse, although these are perfectly natural human occurrences. And when you are testifying under oath, it is critical to be as candid as possible.
As was the case with the written discovery, you may feel that some of the questions are intrusive or have no bearing on your accident. Unless your lawyer opposes or instructs you not to reply, you should, nevertheless, answer each question honestly. The court regulations provide the lawyer considerable leeway in terms of the kind of questions that may be asked and the subjects that may be addressed.
If you get disturbed by any of the questions, you may normally take a break during your deposition testimony, however, you may be required to reply to any outstanding questions first. If you need a break, please inform your lawyer. If the break is authorized, you may stand, stroll about, grab a sip of water, or just clear your mind.
Exploration and Settlement
The tools discussed in this website are only a sampling of those accessible in a lawsuit. These tools reflect the most often used methods of discovery in any particular case. While discovery may seem to be time-consuming, the exchange of information may aid raise the likelihood of
settlement. Additionally, if the parties are unable to settle their matter after discovery, the information exchanged during discovery will assist them in constructing evidence for their case and narrowing the facts and issues that must be addressed at trial.
Arbitration is mandatory
In Colorado, the majority of superior courts have enacted what is known as a “mandatory arbitration” scheme. Arbitration is another option for resolving a dispute without resorting to litigation. Arbitration is a process in which the court assigns an “arbitrator” who will resolve the case after hearing testimony, analyzing evidence, and making an award. Typically, the arbitrator is an accomplished attorney or former judge.
Mandatory arbitration is intended to alleviate court congestion, speed up the litigation process, and offer a cost-efficient means of resolving civil disputes. Arbitration is often favored over a jury trial since the expenses are much cheaper, the standards of evidence are eased, and the hearing itself is far less stressful.
Additionally, an arbitration hearing may be set within four to six months after the filing of a case, but a trial may take up to two years or more. The majority of arbitration sessions are little more than one day, but a jury trial typically lasts at least three to five days.
The arbitration may have disadvantages. For example, the amount of damages that may be awarded is limited. As of this writing, Colorado’s cap is $50,000 (which may be lifted to
$75,000 shortly). However, even if your lawsuit is worth more than $50,000, mandatory arbitration may be favorable owing to the significant expenses and dangers associated with going to trial. Another possible disadvantage is that any party may appeal the arbitration ruling and seek a court trial.
However, if a party appeals the judgment but does not succeed in improving its position at trial, that party will be required to pay the other party’s attorney fees and expenses (which could be substantial depending on the facts of the case and the length of trial).
According to my experience, over 90% of arbitration appeals are initiated by the defendant’s insurance carrier. Most plaintiff lawyers dislike appealing an arbitration judgment because it involves a considerable risk that the client may be required to pay the defendant’s insurance defense expenses if the client obtains a less favorable outcome at trial. What most people do not realize is that many insurance companies will purposefully appeal a reasonable arbitration ruling to compel the plaintiff to pay the significant additional expenditure of a court trial.
They do this to wear out the plaintiff and his or her attorney by making the process as costly and time demanding as feasible. Indeed, many insurance companies regularly spend more money defending a lawsuit than it would cost to pay the arbitrator’s judgment.
If the arbitrator’s decision is overturned and the matter proceeds to trial, the jury will never be aware that the case was arbitrated. And, of course, the jury will never learn the arbitrator’s award amount. This might present complications, particularly in lesser cases, since the jury may believe the plaintiff and his or her counsel coerced the jury into coming to court to resolve a little matter. Often, jurors detest being tasked with deciding a little matter because
they feel minor cases should be resolved. Nonetheless, jurors are unaware until after the trial that the defendant’s insurance company contested the award, so forcing a trial.
It is important to understand that Mandatory Arbitration is governed by particular regulations. These requirements are intricate and might ensnare an untrained attorney. Always contact a knowledgeable and experienced personal injury attorney to determine if your accident case qualifies for Mandatory Arbitration.
According to statistics, the vast majority of cases are resolved voluntarily and without the need to go to trial. Extensive research, time-consuming trials, and financial outlay are all required. Furthermore, they might create unanticipated results.
An experienced personal injury lawyer may feel compelled to take a case to trial from a personal standpoint; nonetheless, the choice to go to trial is always up to the discretion of the plaintiff. When it comes to personal injury cases, the goal of an experienced personal injury attorney is to assist clients to get the best possible outcome. It has been our experience that, in most cases,
Usually, settlement is desired by the client because he or she wants the problem concluded as soon as possible and equitably. The dispute, however, must be decided by a jury trial if a reasonable settlement cannot be achieved.
Personal injury attorneys with years of experience realize that a settlement should not be reached in a hurry. Sometimes it takes time to resolve a matter. The majority of the time, good settlements need patience and work. The procedure might be complicated and take many months or even years to complete.
Initiation of the process varies from one lawyer to another (who goes first and so on), but it always culminates in an offer, followed by counteroffers and counter-demands in response to the offer. However, given the circumstances, the figures that are transmitted back and forth are pretty reasonable. Ideally, a smart lawyer would prepare the case for trial to get the greatest possible settlement for his client. I
t is expected that each side’s settlement offers and counteroffers will be based on the evidence that they anticipate to present and hear during the trial. When it comes time to settle a dispute, a side that has prepared a compelling case for trial may find itself in a stronger bargaining position.
It is necessary to evaluate both subjective and objective elements while deciding whether to accept a settlement offer. Putting an end to your claim sooner rather than later, for example, has advantages. The emotional toll of litigating a matter might be significant.
Due to the possibility of receiving a higher payout, the client may find that the time, worry, energy, and risk assumption necessary to go to trial are well worth it. Various goals of clients are achieved in various ways in different cases and for different clients. This method provides a chance for communication, and a conclusion that is tailored to the specific needs of the client will emerge as a result of this dialogue in that particular instance.
If you are contemplating a settlement offer, there are various aspects to consider, but the most important ones to evaluate are the amount of money being provided, the terms of the offer,
and any monies owing to third parties, such as health care providers or other insurance companies. The rights of these third parties to participate in the distribution of settlement money are governed by laws and contractual responsibilities, respectively.
Every settlement agreement has a set of regulations, and you are required to be familiar with them before signing the agreement. You have no obligation to ask questions or seek clarification from your insurance carrier. Secretly claiming a portion of your settlement might include other parties such as healthcare providers.
That which you and your legal firm must assess is the genuine market worth of the offer that has been made to you. You must know how much of the money being provided will wind up in your pocket, to put it another way. To answer this question, the lawyer must first solve the problem (in the sense of the claim as a whole), to increase the value of the claim as much as possible.
Behind the scenes, an expert personal injury attorney will investigate and evaluate these and other concerns, allowing the client to concentrate on the difficult task of healing from injuries and reassembling his or her life.
Although the lawyer is involved in the settlement of cases, the ultimate choice is always made by the client. To help the client make an educated choice, the lawyer must educate the client about the subject. As well as his degree and expertise, the lawyer will undoubtedly contribute to the outcome. Emotions have a part in the negotiation and settlement process as well as in the litigation process.
For the greatest outcome, your attorney must, nevertheless, maintain as much objectiveness as feasible. To successfully navigate the settlement process, you need an attorney who is both straightforward and level-headed.
Some cases are best resolved in court, provided that the client takes that option after being fully advised of the risks, expenses, and possible rewards involved in proceeding in court. Be aware, however, that your attorney will make every effort to provide you with a realistic appraisal of the rewards and dangers associated with settlement and trial options. You will be able to make an educated decision as a result of doing so.
A settlement offer should be understood.
Initially, both of you and your attorney will talk about whether or not the amount of the offer is fair in light of the current situation. This is something your lawyer should be able to advise you on, comparing the likelihood of a successful trial against the certainty and advantages of agreeing to settle immediately.
A settlement offer that you turn down does not rule out the possibility of receiving another in the future. As a result, some defendants anticipate going through many rounds of offers and denials.
This one question serves as the yardstick by which every settlement offer is judged: “What would a jury decide in your case?” Of course, no one can be certain. However, the reasonableness of a settlement offer is determined by whether or not a jury would award an amount that is near to the offeror a different number that is much greater or lower than the
settlement offer. The settlement offer should normally be accepted if your attorney feels it would be difficult to convince a jury to award a sum much more than what was offered.
Another distinction is between the settlement value of a lawsuit and the actual value determined by a jury. When a lawsuit settles, the settlement value is always lower than the case’s true worth. As a result, the settlement value accounts for the tremendous price and risk associated with going to trial.
Settlement values are always determined by the parties’ collective assessment. The settlement offer must be substantial enough to convince the claimant to accept it to avoid the increased risk and cost of proceeding with litigation and a trial.
The settlement value of the case will be reduced even further if there is a strong defense concerning liability (i.e., if the defense can demonstrate that a jury may not find that the defendant was at fault for the accident or that plaintiff shares a significant portion of the fault), to reflect the risk that the defendant will be found to be at fault or to have an only minor fault.
Insurance companies would inevitably value a settlement at a lower level than the value of a jury decision. For the second time, the insurance company is aware that the plaintiff would suffer risk and expenditure if the case goes to trial, and the offer will be tailored to account for these considerations.
There are also additional issues, such as if there are any debts, claims, or other liens against your settlement recovery that need to be considered (we will discuss and define liens in the next section). A settlement offer will be negotiated by your attorney to cover any deductions that must be made from your payment.
Your liability for the remaining debts may be increased if the settlement offer is insufficient to cover all of them. Some of the time, your lawyer may assist you in making sure that all of your legal duties are satisfied by negotiating with the other party or by employing other legal remedies available to you.
Depending on the circumstances, your attorney may be able to persuade creditors to accept a lower sum in return for quick payment. However, since this is an unpredictable procedure, it is critical to review your debts and commitments with your attorney before evaluating a settlement offer.
At this point, your attorney may also explore subrogation with you, which we touched on briefly in Website One of this website. When another party has an interest in your settlement recovery, you may bring a subrogation claim against them. Sometimes your health or auto insurance company, or any entity that has advanced money to compensate you for your injuries or losses, may file a subrogation claim against you.
In the case of medical insurance, your first medical treatment was most likely covered by the policy. However, if a car insurance company is legally compelled to pay such expenses, the medical insurer may be entitled to reimbursement from the auto insurer or you, as part of any settlement you achieve with the auto insurer, whichever is greater.
Subrogation may be complicated, and it may be governed by state and federal statutes, as well as by specific contracts, depending on the circumstances. To understand how it pertains to you, you need to consult with an attorney.
Consider whether settling with one defendant or insurance company will affect your ability to pursue claims against additional defendants or insurance companies, or whether filing a lawsuit against another party for the same injuries will affect your ability to pursue claims against additional defendants. A comparative negligence rule is used in Colorado (also called
comparative fault). In other words, depending on the proportion of carelessness committed by each party, more than one party may be liable for the damages suffered by a plaintiff.
Consider the following scenario: Parties A and B were both negligent in injuring a person, and the victim’s losses were determined to total $100,000. It was determined that Party A was 25 percent at fault, while Party B was 75 percent at fault It is estimated that Party A will pay
$25,000 in dam-age, whereas Party B will pay $75,000 in damage. By the provisions of the legislation, Under the doctrine of comparative blame, each negligent person is only liable for its proportionate share of the damages decided by the jury (or a judge if the matter is tried without a jury, i.e., bench trial). The law of joint and multiple responsibilities, on the other hand, may make each defendant jointly and severally liable for the full judgment, rather than simply the defendant’s proportional part of the total judgment amount. For joint and several responsibilities to be established, you cannot settle with one defendant and go to trial against the other defendants. Therefore, it may be advisable to settle with all defendants at the same time or to take them all to trial at the same time to avoid a lengthy and expensive litigation process.
Will liens have an impact on my settlement?
Liens are legal claims against the proceeds of your settlement. In a personal injury claim, the most typical sort of lien is one claimed by your health or car insurance company for medical treatment paid on your behalf. A lien may also be claimed by your healthcare provider. If the hospital or doctor is due money for your post-accident care, they may file a lien against your settlement or on your house or other property.
Resolving lien claims may be challenging due to the many complicated regulations that apply to them and the fact that lien holders are sometimes hesitant to answer in writing inquiries concerning their liens. Regrettably, the law does not always compel lienholders to reply to your lawyer within a certain period. Obtaining a proper response might take months at times.
This delay prevents settlement cash from being paid promptly to clients like you, which may be irritating for both you and your lawyer. Unfortunately, depending on the kind of lien and the identity of the lien holder, this time delay may be inevitable. Your legal company should work diligently to gather this information and overcome these concerns to distribute the settlement and end your case.
A Medicaid or Medicare lien is an example of a complicated lien claim that may take longer to settle. If Medicaid or Medicare has covered part or all of your treatment, they are entitled to compensation. These government programs will thereafter be entitled to a lien on the proceeds of your settlement. Your lawyer will almost certainly have to withhold an amount equivalent to the debt from your settlement until you can reach an arrangement and pay the agency.
Medicare and Medicaid are infamous for their tardiness in responding to requests for information on their liens, so more delay is anticipated. Again, your settlement payments will not be given until you reach an agreement with Medicare and pay the required Medicare premiums.
This may get rather complicated when many insurers or debtors are involved. For instance, you may encounter complex lien issues if you have private insurance (including a settlement from a personal injury lawsuit) yet use Medicare as a secondary insurer. Medicare will issue a conditional payment if it is uncertain whether Medicare is the main or secondary insurer. If it is subsequently established that the payment was made by another party, Medicare is entitled to reimbursement from that party, or you or the health care provider, if either of you was paid by that party. To recoup this form of conditional payment, the federal government may impose a lien on your property.
The ERISA lien, which stands for “The Employee Retirement Income Security Act of 1974,” is another potentially troublesome lien. ERISA is federal legislation that provides companies with unique rights about health care programs.
Typically, an ERISA lien is substantially more onerous than a lien filed under state law. For example, some equitable defenses may be available to you when confronted with a state- created health plan lien. This implies that your attorney may be able to negotiate a reduction or elimination of the state law lien, maximizing your settlement compensation.
This is not the case with the ERISA lien. Numerous state law defenses have been eliminated in recent federal and Supreme Court judgments. Regrettably, this implies that you may be required to repay the ERISA plan in full from your recovery. Again, you should check with your attorney about the ERISA lien.
There may still be various defenses available to mitigate or prevent the lien completely. A case employing Medicare as an illustration
Medicare cases may be more challenging than commercial health insurance situations. This was discovered by one family utilizing Medicare after the mother had catastrophic injuries in a car accident. They were unable to settle their claim with the wrongdoer’s insurance company and thus retained the services of an expert personal injury attorney.
The family believed the situation was settled when the lawyer was able to settle the lawsuit for $300,000. They quickly learned, however, that Medicare was claiming the whole of the settlement funds as payment for the medical costs it had paid on the mother’s behalf. Indeed, Medicare sought reimbursement for services rendered to the mother before the tragedy.
Their seasoned personal injury attorney was able to differentiate between costs for car accident injuries and other forms of therapy. Medicare, being a government body with no actual checks and balances, took months to evaluate the case. The lawyer was able to significantly lower Medicare’s demand after protracted talks.
Methods for resolving disputes
We have made many references in this work to “settlement negotiations.” However, personally negotiating with the defendant’s carrier and attorney is just one method of settling. I recently examined the term “alternative conflict resolution,” which is often used to refer to mediation and arbitration. Both are effective strategies for avoiding trial and resolving disputes.
The simplest approach to obtain a settlement is to negotiate directly with the insurance adjuster, or with the defendant and his or her attorney. This needs extensive knowledge in two areas: the likelihood of your case proceeding to trial and the value of your claim.
This is when having a lawyer comes in handy. Personal injury attorneys with experience have often handled hundreds or even thousands of cases similar to yours, and so understand how your case will likely turn out in trial. Additionally, they should be conversant with the local courts and juries. Additionally, they understand whether evidence is admissible or inadmissible in your case. A
s a result, they will be in a better position to examine and settle your claim in its entirety. Naturally, a lawyer is an accomplished negotiator. This evens the playing field with the insurance adjuster or defense attorney, who will attempt to limit your payments to save the insurance company money.
After you employ an expert attorney, he will manage all communications and discussions with the insurance company and the defendant. Legally, the defendant, his carrier, and his attorney are no longer permitted to contact you personally. You do not often need to be present for direct settlement discussions, but your lawyer will keep you informed throughout. Using the facts you give about your case and material collected through discovery, your attorney will construct the best possible case for settlement and submit it to the other party. If they make an offer, your lawyer will submit it to you together with his or her advice for your consideration.
I already covered mediation in this website. To summarize, mediation is a sort of settlement discussion in which an objective third person assists both parties in reaching an agreement via the use of training in terms of alternative conflict resolution techniques and legal expertise.
Mediation is often performed in person, with all parties present, including you, the insurance company, and/or the defendant, as well as their respective attorneys. A mediator is often a retired judge, a lawyer, or another impartial party who has been educated to resolve conflicts. Frequently, he or she has a specialized certification from the courts or the state bar organization.
In contrast to a judge, a mediator must be compensated. Typically, the defendant and you will divide this fee equally. Mediation may be requested or ordered by the court at any point throughout your case, however, it is more likely to occur during discovery.
Your attorney should be very experienced at mediating disputes. These unique sessions should adhere to a method and schedule. Oftentimes, mediation entails a well-thought-out strategy for the discussions. Your lawyer should have properly prepared for the mediation and be prepared to address any points or holes in the opposing side’s case.
Arbitration was already mentioned. This is another method of resolving disputes via alternate means. As with mediation, it brings the parties together in front of an impartial third party who is familiar with the relevant legislation and will keep the conversation on track. And,
similar to mediators, arbitrators are sometimes retired judges or attorneys with knowledge in the legal field involved in your dispute, with a fee that is typically paid equally between the parties. However, an arbitrator, unlike a mediator, does not actively influence the dialogue or express comments. Arbitrators are more like judges in that they maintain order and make rulings on legal issues and, finally, on which party should triumph.
The arbitration may be nonbinding or binding; in the latter case, the resultant verdict is only indicative. The ruling in binding arbitration is final and non-appealable. Binding arbitration may be helpful for parties seeking a more expeditious settlement, at a lower cost, and with a definitive conclusion. The arbitrator’s name and reputation are critical, even more so in binding arbitration, when the ultimate judgment may not be appealable (hence the term binding arbitration).
Often, both parties agree on the arbiter. Hopefully, your experienced personal injury attorney is acquainted with and comfortable with the arbitrator, which increases your chances of obtaining a good verdict.
When a case is resolved, it is closed.
Settling might bring some comfort in knowing that your legal dispute has been resolved. However, you must still finish the closure procedure, which is a critical step in concluding your case and might take some time.
Typically, you will be required to sign a release and hold harmless agreement, which permanently waives any claims against the at-fault person and/or insurance company for your injuries and losses. A stay harmless agreement safeguards both the defendant and the carrier from any liens or claims against the settlement proceeds. Because signing these forms effectively waives your right to further compensation for your injuries, you should read them carefully and discuss them with your attorney if you have any concerns.
As part of the closing procedure, your lawyer will be required to pay any outstanding bills, claims, or liens from the settlement money. Because this procedure might take time, your lawyer may be required to place a portion or all of your money in a trust account until everyone is paid or until all claims or liens are settled.
After you sign a closing or settlement statement, which normally concludes your case and your client’s relationship with the legal firm, the net settlement money will be given to you. Additionally, it details all settlement cash disbursements, which include payment of legal fees, unpaid medical expenses, liens, and any other obligations to be paid from the settlement funds, as well as your payout. Again, you should not be afraid to raise any issues or questions concerning this text.
If you have unique circumstances or a particularly challenging case, your lawyer may offer alternative methods to distribute your settlement funds or make recommendations that are in your best financial and legal interests. Your lawyer cannot provide you with a settlement check until this procedure is complete and all necessary documentation is completed.
After going through all of the meticulous preparations for a jury trial, it’s easy to understand why the majority of people avoid court. The public expects its problems to be resolved promptly and equitably. While a trial may be fair, it is seldom expedited. Months of preparation are required for a trial, even if it is just a few days in court.
The good news is that many cases handled by professional personal injury attorneys are resolved before the initiation of litigation. And in the majority of situations when a lawsuit is filed, the parties resolve their differences before proceeding to the courts. According to the attorneys that collaborated on this website, 95 percent or more of personal injury cases handled by a competent personal injury attorney settle before trial.
However, your lawyer will never know at the outset if your case will be one of the 5% that get to court. Thus, each case must be prepared with the possibility of a trial in mind. Ironically, those cases that have been well prepared for trial have the highest chance of being resolved without going to trial.
A skilled personal injury attorney will prepare your case from the start as though it would eventually go to court. This is not just in case you go to trial; it is also because thorough preparation enables you and your attorney to present the most persuasive case possible during settlement negotiations. The facts will be complied with. Witnesses will be located.
It is possible to employ experts. Assimilation of evidence will occur. The concerns will be comprehended. The law will be implemented by the circumstances. Settlement demands will be made. Perhaps mediation or another kind of alternative conflict resolution was attempted and failed. The last stage is to present your case to a jury of your peers.
The Complaint and the Response to the Complaint
Each lawsuit in Colorado begins with a written complaint filed in court by the plaintiff’s attorney. The plaintiff’s complaint sets out all pertinent facts, then states each cause of action (the legal basis for suing), and finally seeks or prays for a monetary reward. The person or entity being sued is referred to as the defendant. Each defendant must be physically served with a copy of the complaint and a summons informing him or her how and when to reply to the complaint.
The defendant files a document called an answer in response to the complaint. Each defendant either acknowledges or rejects all of the complaint’s claims. Frequently, the complaint and response together will frame the lawsuit’s concerns.
Once a matter has been filed in court, each party may submit a motion. A motion is a written request to the court requesting a judgment on a particular subject in the case. For instance, a defendant may try to dismiss the lawsuit by arguing that it was submitted too late (the complaint was not filed within the statute of limitations period).
Different standards of review may apply to a given motion. In certain moves, the court may be compelled to accept the other party’s accusations as true to determine whether or not the motion should be granted. In other instances, such as a request for summary judgment, the court must consider whether there are sufficient significant facts in dispute to warrant a trial.
Other motions may simply request that the judge evaluate the information and arguments provided by both parties and then use discretion in determining an appropriate remedy or result.
Motions play a critical role in the litigation and trial processes. Oftentimes, each side’s motion practice is centered on preventing the jury from seeing particular evidence or allowing the jury to see specific evidence. A lawyer’s excellent motions practice may have a major impact on a case’s probability of victory.
Trials by Jury and Trials by Bench
When your attorney files the complaint, any party may seek a jury trial. Numerous courts demand the submission of a separate document to the court along with payment of a juror fee to the clerk. According to this author’s experience, the majority of defense counsel will want a jury demand since persuading twelve regular persons is more difficult than persuading a single judge.
A jury is made up of a group of randomly chosen persons from your neighborhood who are called to court to serve on the jury. Jurors are often chosen using voter registration and motor license information.
Following the presentation of all evidence, the jury will utilize the judge’s instructions (referred to as jury instructions) to determine the three most critical issues in any civil trial: blame (or negligence), causation, and damages. The jury is asked to determine whether each defendant was negligent (or careless).
Causation questions require the jury to determine whether the defendant’s carelessness was a direct cause of the plaintiff’s injuries and/or damages. The jury is next asked to determine the number of damages sustained by the plaintiff as a result of the defendant’s carelessness.
Finally, if there are many defendants or there is a dispute over whether the plaintiff was negligent as well, the jury is asked to determine the proportion of responsibility that should be given to each party.
The judge who presides over a trial (sometimes referred to as the court) is responsible for resolving legal difficulties in the case and ensuring that each party presents their case in line with existing legislation. A judge’s role is to determine whether evidence is admissible via pre-trial motions (also known as motions in limine) and ruling on council objections.
In essence, the judge serves as a referee during the trial, ensuring that each party’s rights are safeguarded and that each side has an opportunity to present their case under the rules of evidence.
The Onus of Proof
The plaintiff has the burden of evidence as the person seeking financial compensation. This implies that the plaintiff must establish every element of each cause of action to get a recovery. There are several degrees of evidence. The majority of people are aware of the phrase “evidence beyond a reasonable doubt,” which is the highest standard of proof available.
This is true in a criminal case. However, the burden of evidence is substantially lower in civil proceedings, such as those involving personal injury claims. The burden of proof is a
“preponderance of the evidence,” which indicates that the evidence must be more likely true than false. According to some lawyers, it is the 51 percent burden of evidence, since the plaintiff just has to tilt the balance (51 percent vs. 49 percent) on his or her side to win the case.
Introducing and Defending Your Case
Due to the plaintiff’s burden of evidence, your attorney has the opportunity to present your case first at trial. After your attorney has provided all of the evidence in support of your claim or has “rested,” the defendant has the opportunity to submit his or her evidence or case.
Each party has the right to call witnesses and provide additional evidence, such as exhibits. Generally, there is no limit to the number of witnesses who may be called, as long as each individual delivers fresh and relevant information or testimony that is not regarded cumulative or is time-consuming for the court.
Each side is also entitled to conduct a cross- examination of the opposing party’s witness via the use of leading questions. Effective cross- questioning may have a significant impact on the jury and can determine whether a case is won or lost.
After both parties have rested, any party may give “rebuttal” evidence or testimony that seeks to directly rebut or reject the opposing party’s evidence on a particular subject or point. This implies that after either party rests their case, further witnesses or pieces of evidence may be submitted to the jury.
Each party has the right to call witnesses and provide additional evidence, such as exhibits. Generally, there is no limit to the number of witnesses who may be called, as long as each individual delivers fresh and relevant information or testimony that is not regarded cumulative or is time-consuming for the court. Each side is also entitled to conduct a cross- examination of the opposing party’s witness via the use of leading questions. Effective cross- questioning may have a significant impact on the jury and can determine whether a case is won or lost.
After both parties have rested, any party may give “rebuttal” evidence or testimony that seeks to directly rebut or reject the opposing party’s evidence on a particular subject or point. This implies that after either party rests their case, further witnesses or pieces of evidence may be submitted to the jury.
At some point during or near the conclusion of the trial, the judge and each party’s counsel will discuss and debate the jury’s written instructions. This is always done outside of the jury’s presence. Each party’s counsel may submit their own set of directions to the court for evaluation and consideration. Instructions are intended to be succinct and accurate summaries of the law applicable to the kind of claim before the jury.
Generally, the court is given considerable latitude in determining which directions to employ. Occasionally, lawyers may fight about the appropriateness of a single phrase or term in a jury instruction. After the court considers the arguments for and against the directions, the judge determines which instructions will be presented to the jury. Drafting and disputing whether jury instructions
should be read to the jury is a critical aspect of the trial. A single word, or the way a phrase or sentence is worded, may have a significant impact on the result of a trial.
After the court has decided on the jury instructions, the lawyers for each side are entitled to give closing comments to the jury. However, before the lawyers are permitted to make their last summaries, the court’s instructions are read to the jury.
The regulations regulating closing arguments in civil trials in Colorado are fairly wide. Unless the lawyer’s words are adverse or contradict one of the judge’s previous rules on admissibility of evidence, the attorneys are granted considerable flexibility to argue their position. Due to the plaintiff’s burden of evidence, he is entitled to close first.
The defense attorney next delivers his or her closing argument. Finally, the plaintiff’s attorney has the opportunity to give a rebuttal closing. Only the plaintiff’s attorney is permitted to deliver a rebuttal closing statement since the plaintiff bears the burden of evidence.
Verdict of the Jury
After all, evidence has been presented, both parties have rested, the jury has been handed the court’s directions, and closing arguments have been completed, the jury will be asked to consider the matter. The jury deliberates in private, away from the judge, the attorneys, and the parties. In principle, the jury is expected to determine which set of facts was established as true and then apply that set of facts.
Addressing such facts by applying the law (the court’s orders). In Colorado, a jury must agree on a judgment with 10 out of twelve jurors.
If the jury is unable to reach a unanimous judgment by a margin of 10 to 2, the court will declare a mistrial (commonly known as a “hung jury”). When a jury is deadlocked during a trial, the case must be retried before a fresh jury from the beginning. Plaintiff attorneys often dislike hung juries because they indicate the case must be retried at considerable cost.
A New Prosecution
What if you disagree with the jury’s decision? Is it possible to arrange a fresh trial? True, but only in very rare cases. Under Colorado, there are just a few circumstances in which a judge may order a new trial. The presumption is quite high that a jury’s verdict is right and should remain.
A fresh trial may be ordered for a variety of reasons, including that the evidence does not support the verdict, an error of law was committed during the trial, or the jury disregarded one of the court’s directions during deliberation. Absent these extraordinary circumstances, the jury’s judgment nearly invariably stands.
Judgment and Receipt
Once the jury has reached a decision, the case will be reduced to judgment. This simply means that the second piece of paper will be filed specifying the amount of money due to the plaintiff by the defendant. Generally, the defendant will have insurance, and the carrier will pay the judgment swiftly (practically speaking the defendant will almost always have
insurance because most plaintiff attorneys will not work on a case unless there is a guaranteed source of recovery).
If the plaintiff does not have insurance or has insufficient insurance, he or she may initiate collection actions. Several of these initiatives involve methods such as deducting payments from an individual’s paycheck or bank account (called a writ of garnishment). Another option is to take property and attempt to sell it to satisfy the judgment (called a writ of execution).
These collection attempts, however, are time-intensive and will almost certainly result in further legal costs and expenses.
One disadvantage of attempting to enforce a judgment by seizing the defendant’s cash or property is that the defendant may declare bankruptcy. If this occurs, the bankruptcy court may halt all collection attempts and then dismiss the judgment obligation.
If the judgment debt is dismissed, it is not necessary to pay the judgment in full. This is why the majority of cases should be resolved for the defendant’s insurance policy limits without going to trial if the insurance provider tenders to such limits. It takes a lot of money to litigate a matter to verdict and then judgment, solely in court fees and other expenses. This large expenditure is the client’s responsibility.
Therefore, unless the defendant is very rich (worth millions), it makes no sense to go to trial with the intent of collecting more than the defendant’s insurance policy limitations. If you choose to pursue the defendant’s assets, there is no certainty that you will collect more funds. Additionally, if the defendant files for bankruptcy, the whole judgment obligation may be dismissed.
If the judge declines to grant a motion for a new trial, any party may appeal the jury judgment. To prevail on appeal, you must typically establish that the judge committed a legal mistake that materially harmed the opposing party’s right to a fair trial. For example, an appeal will not succeed only because you believe the jury’s judgment was incorrect or unjust. Statistically, the likelihood of an appeal succeeding is less than 25%-30% of the time.
In Colorado, the Court of Appeals hears the appeal first. The Court of Appeals is divided into three distinct divisions. Each division is its court, consisting of three judges who examine the trial record to ensure that the trial judge made the proper findings and that neither party was unduly biased in violation of the law. This court is not permitted to hear fresh evidence or to pass judgment on the evidence already provided before the trial court (unless it was wrongly admitted). Appeals are also time-consuming.
The party appealing is responsible for transcribing and presenting the whole record to the court and the other parties. This may be rather costly. Additionally, there are extra-legal expenses associated with the appeal to a conclusion. In Colorado, an appeal may likewise take a long time to resolve, often at least 18 to 24 months after it is filed.
Following the Court of Appeals’ judgment, any party may appeal to the Colorado Supreme Court. However, an appeal to the state’s highest court is not always granted. The Colorado Supreme Court has discretion over whether or not to consider the appeal. Generally, the Supreme Court will consider an appeal only if a constitutional question is raised or if the
three appellate divisions disagree on an important issue. To ask the state Supreme Court for discretionary review, you must file a “petition for discretionary review.” This is a different document in which you attempt to convince the court that your appeal should be accepted. The majority of applications to the state Supreme Court for discretionary review are refused.
Some prospective clients are concerned that a lawyer may make critical judgments concerning their situations. This is understandable. Some of these choices may include determining the amount of a settlement without consulting with the client and choosing whether or not to initiate a lawsuit. Nonetheless, these concerns are unjustified, at least in the author’s working environment.
Warrior Motorcycle Accident Lawyers believes that a personal injury claim is always the client’s property. We will undoubtedly advise and give suggestions to the client, but the final decision on whether to settle or go to court will be made by the client himself.
We at Warrior Motorcycle Accident Lawyers understand that litigation is a means to a goal, rather than an end in and of itself. It is our goal to secure justice for our clients, whether this is accomplished via litigation or by a settlement.
For the client, this involves obtaining full and fair financial recompense for his or her losses and holding negligent wrongdoers accountable for their acts. At the end of the day, Warrior Motorcycle Accident Lawyers is here to assist the client to the best of our ability, and we have been doing so effectively for the last 5 years.
It is my goal with this website to provide the reader with a useful and somewhat extensive overview of the personal injury claims and litigation process, as well as to address some of the most often asked questions that my firm hears from prospective clients.
For those of you who have already chosen to pursue a legal claim, I feel the material in this website is essential. However, it is also beneficial to those who are merely interested in learning more about their legal rights and remedies after being hurt through no fault of their own.
Despite this, I am well aware that no website will ever be able to discuss and answer every potential issue or combination of facts that may emerge in any given instance or situation. Two instances that seem to be identical on the surface may in reality include vastly diverse challenges or problems that are specific to the plaintiff in question. That is why the reader should at the very least speak with an experienced personal injury attorney before pursuing the claim on his or her own, particularly if the injuries are severe and the damages are substantial.
We at the Warrior Motorcycle Accident Lawyers are enthusiastic about what we do, which is to assist accident victims in understanding their rights and then navigating them through the maze of personal injury claims. When most accident victims realize that they have entered the claims procedure, they are taken aback by how similar it seems to a battle zone.
The insurance firms that are attempting to fight or lessen the claim will go to great measures to achieve their objectives. Having an experienced advocate on your side is critical if you are a victim of an accident. You should choose a business that has a proven track record of success and that employs lawyers that are beyond reproach in terms of honesty and integrity.
Warrior Motorcycle Accident Lawyers go to great measures to safeguard your rights and, if required, go head-to-head with the insurance company and its lawyers and specialists. We call this the Warrior Motorcycle Accident Lawyers Advantage. It doesn’t matter what they hurl at you; you won’t be outgunned.
If you have any questions or worries, I hope this website has addressed them for you. Also, I hope that this article has provided you with a better understanding of the personal injury claims procedure and what to anticipate if litigation is required.
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