The Seattle Personal Injury Blog
Posted Friday, October 21, 2016 by
Most cases end in settlement rather than go to trial. There are many reasons to settle a personal injury case, even if the settlement number is less than the potential of your reward at trial. The purpose of a settlement, however, is an exchange. It is a guarantee of compensation and in return for you giving up your right to sue (or continue your suit) against that defendant for liability and your injuries.
Process from Injury to Trial
After your accident and you seek treatment for your injuries, you should obtain any police, accident or incident report. Bring the report with you when you meet your personal injury attorney so he or she can provide you with a clear assessment of your case.
Filing a Complaint
Once it becomes clear that you have a case, your personal injury attorney will file a complaint in civil court. The purpose of a complaint is to detail the actions taken by the person, or persons and/or entities, who injured you (the “defendant”), and the injuries sustained by you, (the “plaintiff”). It will also include a line or two about the amount of damages sought. This puts the other party (and his or her insurance company) on notice of the suit.
Once the complaint is filed, the defendant is expected to file an Answer to the claims. This must be done within a specified amount of time.
“Discovery” is a word that describes the investigative stage in the process. During the discovery process, the lawyers for both sides gather information from the other side. This will include things like police reports, accident or incident reports, and eyewitness statements, if any. It will also include your medical records from the hospital, your treating physician, your physical therapist, and/or chiropractor. You will be “deposed.” This means you will meet with lawyers for the defendant and be subject to questioning. Your lawyer will be with you. Prior to the deposition, your lawyer will spend considerable time meeting with you in advance of the deposition to make sure you are well prepared, and familiar with what the deposition will feel like. Similarly, the person who injured you will be deposed by your lawyer. You have the right to be present for this deposition as well. The most important rule about being deposed is, “Don’t guess.” If you don’t recall the answer to a question, say you don’t remember.
Once your lawyer and the lawyer for the other side have gathered all the information they feel is necessary to re-evaluate the case, they will engage in a case assessment. Your lawyer will evaluate any defenses asserted by the respondent. The defense attorney may argue you contributed to your own injuries, by your own negligence. Alternatively, the defense attorney may argue the defendant was not responsible for the accident, your injuries were pre-existing and/or the accident did not cause your injuries. There are any number of different defenses that may be asserted. Your lawyer will carefully review the response, keeping in mind case law and the statutes of the state of Washington. Your lawyer will also evaluate the claims for credibility and truthfulness. Finally, your lawyer will be looking for inconsistencies (or consistencies) in evaluating the strength or weakness of the other side’s response.
After the close of discovery, it is not uncommon for the lawyers from each side to engage in negotiations to determine whether a settlement can be entered into. This will typically involve several back and forth conversations, as both sides seek to agree upon a dollar amount that is satisfactory to both sides.
When Do Settlement Negotiations Occur?
Many people think that when a case is filed, it is likely to go to trial. This is most often not the case. Instead, most civil cases settle somewhere along the line between the filing of the suit and up to and even during the trial. In addition to the negotiations that may take place once discovery is completed, there are more formal procedures in place designed to encourage settlement.
Jury Trial Demand
Once the Answer has been filed, either party can demand a trial. The trial can be either to a jury or to a judge, which is called a court trial.
Even though your lawyer has filed a demand for a jury or court trial, the court will set a date for a settlement conference. This typically happens about 90 days before the trial setting. The settlement conference is specifically designed for the parties to come together to engage in discussions about settlement. You, as the injured party, as well as “the person with authority to consent to settlement” for the other side, will be required to attend this hearing.
Even if your lawyer and the lawyer from the other side have been unsuccessful in any attempt to resolve the matter, a confirmation hearing will be held one week before the scheduled jury trial. The purpose of this is twofold: first, to confirm both sides are ready to proceed to jury trial and second, to determine once again if an alternate resolution can be arrived at.
Couldn’t I Get More Money From Trial Than Settling?
There are many reasons to consider when deciding to settle a personal injury case prior to trial:
- No guarantee of a win: While it is true that it is possible that you could be awarded more money by a jury than you are being offered to settle, the opposite is also true. It is possible the jury would award you less money than you are being offered to settle or the jury may find in favor of the defendant.
- Time: Preparing for and the actual trial take time. Not only will you be meeting with your attorney in preparation for your testimony, including going over your testimony and doing a mock cross-examination, at home, you will also be reviewing documents to refresh your memory of the accident, injuries, and treatments you had. You will also be expected to attend every day of the trial.
- Stress: Trials are stressful. Not only do you need to be prepared to testify, but you will be subject to cross-examination and the opposing attorney will be asking questions in an almost hostile or accusatory fashion. The attorney will be looking for inconsistencies in your prior testimony and will be emphasizing any weakness in your case.
- Cost: Trials are also costly. Although it is true you do not have to pay your attorneys unless you win, and your attorneys receive a third of your gross award, if you do not win, you still need to pay any expenses. This includes expert witness reports and testimony, court fees, etc. If you do win, your net award is the gross award less attorneys fees and any expenses.
- Appeal: When a party loses at trial, that party has the right to appeal the decision. This can lead to additional months – even years, of waiting for case resolution if the party appeals. Settling the case guarantees there will be no appeal. Instead, your case will be considered resolved and closed.
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Posted Friday, October 7, 2016 by
Preparing for a jury trial involves careful consideration of many different variables. They include:
Preparing for your testimony;Preparing for getting to the courthouse;Considering what you will wear;Considering what to bring to the courthouse.By being prepared, or as prepared as you can be, you minimize your stress. This includes the stress of arriving on time to your trial, having confidence in your responses, and making a good first impression on the jury.
Preparing for Your Testimony
Your Own Preparation
To prepare for your testimony, first you must do some homework. It is unlikely that you will have in your memory easy access to every fact, every doctor’s appointment, every ache and pain. Consequently, it is important to review the documents provided to your lawyer. This will include your diary of injury, doctor’s visits, receipts, the original police reports, any witness statements, other documents you produced during discovery, and your answers to your interrogatories (list of written questions from the other party that you responded to). You should also review your deposition transcript.
Preparation with Your Attorney
You and your lawyer will meet before trial to discuss your testimony. Your lawyer may assist you by performing a mock direct and cross examination. Understand, the rules of court dictate the types of questions and how your lawyer, and the lawyer for the other party, can ask questions. When your lawyer is asking you questions your lawyer is conducting a direct examination. Those questions, generally, are structured as open ended questions, designed to allow you, the testifier, to provide the narrative. Contrast, on cross examination, the lawyer asks closed ended questions, with the lawyer providing the narrative. This means that the questions are usually minimized to yes or no answers.
A good direct and cross will look something like this:
Your lawyer: Tell us what you did on the day in question.
You: I was with my friend Jill, and we went up this hill.
Your lawyer: Why did you go up the hill?
You: To fetch a pail of water.
Your lawyer: Then what happened?
You: I fell down. And broke my crown. And then my friend Jill came tumbling after.
The other lawyer: You were with your friend Jill, is that right?
The other lawyer: You two went up the hill, correct?
The other lawyer: And you fell down, correct?
The other lawyer: That’s when you broke your crown, correct?
The other lawyer: And then your friend, Jill, fell down after you, correct?
It is important to understand the rules of questioning, as your lawyer will expect you to provide a narrative of your accident and subsequent injuries without suggesting answers to you.
You and your lawyer will go over your direct examination so you are familiar with the questions that will be asked and you are prepared to provide your answers. This becomes extremely important if you have weaknesses in your case that should be first addressed during direct examination so that such weakness is brought out in a favorable light. Likewise, your attorney will do a mock cross-examination so that you are prepared to respond to questions that may feel hostile.
Getting to the Courthouse
Believe it or not, this is a critical step. Do not underestimate the importance of arriving at the courthouse not just on time, but early. Once you get to the courthouse, you will have to find parking. You will have to go through courthouse security. You may rely on the fact that you will not be the only one attending court that day. Expect that there will be a line for security and plan accordingly. Next, you may have to find the central calendar to determine what courtroom you have been assigned.
Few things make for a worse start to a jury trial day, then arriving late, out of breath, and out of sorts. Do yourself a favor. Determine how you are going to get to the courthouse on the day of your trial, and do a practice run ahead of time. If you are going to drive to the courthouse, make the drive at the same time of day to get a feel for the traffic at that time. Your courthouse may or may not have its own parking lot. Even if your courthouse has a parking lot, take a few minutes to locate alternate parking. Presume the lot may overflow. If you are taking public transportation, you will want to similarly do a practice run, at the same time of day, on a work day, to determine how long the trip will take, and how far of a walk it will be from bus stop to courthouse.
Consider Your Attire
You want to make your best impression on the jury, starting with your appearance. Your attorney may advise you to wear business attire, usually a suit and dress shoes, not sandals or flip flops. You may consider wearing, dress pants and a button down shirt, or, for females, you may wear a dress or skirt that goes to your knees or lower. Do not wear raunchy or offensive clothing, flashy jewelry, jeans, or t-shifts with slogans. You should wear modest clothing and shoes.
Consider also covering your tattoos. Yes, they are meaningful to you. Yes, you can be proud of them. But you don’t want the jury trying to read your tattoos, or figure out the significance of that frog tattoo, when they should be listening to the testimony. Remove your piercings, with the exception of earrings. Select neutral tones, such as black, navy blue, gray, and beige.
The focus of the trial should be on the facts, not on distractions. Refrain from wearing anything flashy or expensive. Some juries may feel that if you are able to wear designer clothing and shoes and wear a Rolex, then perhaps you don’t need the money. Unfortunately, first impressions make a big impact and the jury’s first impression of you will be your appearance.
What to Bring with You to the Courthouse
The part about trials that is never shown on television is the incredible amount of down time that occurs during trials. You don’t see it on television, because it is boring. But it is also a sad fact of trials. There may be meetings between the judge and the lawyers, as they hash out legal issues. The court may have to take time to hear another matter before your case. The jurors will take breaks. There may be more than enough time for lunch.
Bring something to occupy your down time. It can be a book, a magazine, a newspaper. Don’t assume you will be allowed to bring your smartphone into the courtroom.
Just as the court may order an extended lunch break, the reverse may also be true. It’s possible there won’t be enough time for lunch out of the courthouse. Bring some money for the vending machines. Some courts will allow you to bring food into the courthouse, but not beverages. Check with your lawyer about the local rules.
Bring a notebook. Your lawyer will not appreciate you whispering commentary in their ear during testimony. It’s almost impossible to listen to testimony and whispered client comments at the same time. With your notebook, you can calmly write any comments or concerns you have, and gently pass them to your attorney, who will read your comments as time allows.
Pack your patience. Remember, trials are theater. Jurors are watching you at all times. There is no need to react visibly, even if there is testimony you disagree with. The point of discovery is to learn what information the other side is planning to present. Rarely do trials include “surprise testimony.” Your lawyer is aware of the facts and is prepared to address them.
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Posted Friday, September 23, 2016 by
Nearly everyone has been affected by a car accident at one point or another. Whether you were involved or a friend or family member was injured, you know that the immediate effects can be devastating. You may have serious injuries, and people may be worried about you. Your first reaction may be to reassure everyone that you are doing fine; however, a simple social media post can cost you in a car accident claim.
According to the National Highway Traffic Safety Administration (NHTSA), there are more than six million car accidents every year. The average auto liability claim for property damage is around $3,200, while bodily injury claims often rise above $15,000. These unexpected expenses can cause serious consequences, especially if you’re unable to work and face significant recovery time. Your first reaction after a car accident may not be to preserve your right to recovery from those responsible; however, it should be a consideration.
Everyone has a connection to social media. Either you or someone in your family has a Facebook profile, Instagram account, or Snapchat presence. After an accident, you may be tempted to let everyone know how you are doing or vent about what actually happened. However, everything you do and say on social media, a public domain, can be discovered in a car accident claim. You should post wisely and caution others who care about you to do so as well.
Social Media Posts That Minimize Your Situation
Your immediate reaction after a car accident may be to post a comforting status on Facebook. However, that notification that “you were in an accident, but seem to be okay” can have serious repercussions on your recovery. While trying to maximize the amount of damages you can receive from an insurance company or responsible party, you need to be extremely descriptive about your pain, suffering, and actual injuries. The more pain you suffer, the more you’ll recover. Although you should not lie, you also don’t need to minimize the situation to everyone on your friends list. Insurance companies and juries will take minimization of injuries as an opportunity to pay you less money for your losses.
Pictures Showing Risky Behavior Before Your Accident
If you regularly post pictures of yourself bungee jumping or racing cars, an insurance company or jury may believe that you have suffered previous injuries that are causing your current pain instead of the accident you recently experienced. Your posts about risky driving behavior may also cause some people to question whether the other driver was really at fault in light of your previous behavior. Make sure the activities you post on social media are all legal and seem to maintain reasonable behavior for a responsible person.
Posts About Activities Post-Accident
While you are claiming severe pain and suffering, your social media posts may be contradicting you. If you have recent posts of yourself taking part in physical activities or strenuous work habits, an insurance company or jury may think you are being less than honest about your actual injuries. You should be honest about your injuries as well as your abilities post-accident. Be careful not to hype up the activities in which you are taking part just to get a few extra likes on Facebook.
Multiple Injury Posts
If you are frequently injured or have had multiple car accidents in the past, your current claim may be devalued. If you’ve posted extensively about those injuries on social media, an insurance company can discover those incidents during a lawsuit. Insurance companies will take any measures necessary to reduce their payouts, and proof of prior injuries that are contributing to your current pain and suffering will help them prove that they are not completely responsible for your damages.
A significant area of recovery during a car accident claim involves mental anguish and suffering. It can be difficult to prove how much anguish you have experienced. You must show that the car accident and your injuries have harmed you mentally and have had negative effects on your life. Social media posts that express intense emotions can prove that you are not suffering as much as you are claiming or that you are simply a dramatic person by nature. In either event, insurance companies and juries will be less likely to believe your side of the story if your social media posts are contradictory or seem over the top.
What Should You Do?
Car accident claims can be complex. You must prove economic and non=economic damages, both of which can be negatively impacted by careless social media posts. However, once you find out that a post is negatively impacting your claim, you cannot simply delete it. That constitutes destruction of evidence. Your best course of action is to live a meaningful, humble life before any accident occurs and to beef up your security as much as possible. Only friends you know well should see your posts, and do not accept any new friend requests after an accident until the claim is settled.
An experienced car accident lawyer can help guide you through the complicated legal process after a car accident. Contact Chris Thayer today to find out if any of your social media accounts may negatively affect your situation after an accident. We will review anything questionable and help you decide what steps to take next.
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Posted Thursday, September 8, 2016 by
In the event that you are a party in an automobile collision, your first reaction – after you catch your breath and calm down – is evaluating the damages and considering your car insurance coverage. Whether your injuries are mild or severe, or the collision involved extreme property damage or injury, the accident will likely compel a claim for damages. Personal injury protection (PIP) is a vital and often times, necessary extension of your car insurance.
No-Fault Insurance States
Rather than filing a claim against the other driver’s insurance company, each company compensates their own policyholder – regardless of who holds liability for the collision. States that implement this type of insurance include Florida, New York, New Jersey, Michigan, Minnesota and Massachusetts. This system serves to eliminate injury liability claims and forces the driver to seek compensation for financial losses directly through their own insurance company. With the hope of potentially lowering litigation costs, No-Fault Insurance is designed to prevent those injured in a car accident from making a claim for personal injury damages.
There are, of course, some exceptions to this rule, depending on the jurisdiction in which you reside. For example, in the state of New York, if a plaintiff in a personal injury action arising out of negligence establishes that their economic loss exceeds $50,000 and/or the plaintiff suffered a “serious injury,” the no-fault insurance law will not prohibit them from filing a claim for damages against the other driver. Serious injury is defined as the following:
DeathDismembermentFractureLoss of a fetusPermanent loss of use or a body organ, member, function or systemPermanent consequential limitation of a body organ or memberSignificant limitation of use of a body function or systemMedically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
Fault-Based Insurance States
In assessing the importance of PIP, it’s critical to understand the distinction between fault and no fault states. Most states have adopted what is referred to as the fault-based system with regard to negligence while operating or using a motor vehicle. In fault-based states, where traditional liability insurance is implemented, the driver who is at fault for the accident is required to pay for any injuries or damages to the other driver. Traditional liability insurances require their drivers to carry a minimum amount of liability insurance on their automobile insurance policies. For example, in Washington, a fault-based state, to fulfill the mandatory insurance law, a driver’s insurance policy is required to have the following minimum qualifications:
25,000 for injuries or death, per person50,000 for injuries or death, per accident10,000 for property damageIn contrast to a no-fault based system, such as New York, to fulfill the mandatory insurance law, a driver must possess all of the above referenced qualifications but the state additionally mandates that you hold a minimum of $50,000 “no-fault” coverage, also noted as PIP – personal injury protection.
What is Personal Injury Protection?
Personal injury protection, an extension to your mandatory automobile insurance, is used as a supplemental coverage on top of your basic liability, sometimes mandated by the jurisdiction and other times voluntarily implemented by the insurer. PIP covers medical expenses, lost wages due to injury, funeral expenses, etc., regardless of who was at fault. An insurer makes a personal injury protection claim against his or her own insurance company for payment of financial losses as a result of the automobile accident.
If It’s Not Required by My State, Do I Need Personal Injury Protection?
A commonly asked question for those residing in both no-fault and fault-based insurance states. The disheartening reality is that car accidents happen more often than not. These accidents sometimes result in severe property damage and great bodily harm.
PIP insurance is mandated in 13 states across the nation, including Florida, North Dakota, Pennsylvania, Minnesota and the District of Columbia. States in which PIP coverage is optional includes, but is not limited to, Washington, West Virginia, California, Arizona, Ohio, Rhode Island and South Carolina.
Personal Injury Protection serves as a safeguard, in the event you are involved in an accident. It does more than to just cover your medical expenses, some of which may not be covered by your health insurance. PIP covers a vast amount of crash-related expenses, including property damage, funeral expenses, rehabilitation costs, medical expenses, lost wages due to an injury, childcare costs, and costs related to household and other collateral damage. For example, if you are severely injured in a car accident and cannot maintain your household chores or duties, PIP may cover the costs associated with hiring someone to do it for you. Furthermore, PIP insurance removes the question of liability and each driver’s insurance policy pays for damages based on the regularity and severity of your car damages, not based solely on your percentage of negligence.
Without personal injury protection, you may take a major financial loss if you are involved and/or injured in an automobile accident. Most importantly, PIP adds extra protection to crash-related expenses and, unlike traditional liability coverage, compensates for lost wages and protects children that may be injured or require additional care. PIP provides an added value to your insurance coverage.
If you were involved in a motor vehicle accident and wish to make a claim against your PIP carrier, or if you do not have PIP, consult a knowledgeable motor vehicle accident attorney with Chris Thayer by calling (206) 900-8209.
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Posted Friday, August 26, 2016 by
If you are injured and file a personal injury claim, the chance is that the issue of resolving your claim will come up quickly. Insurance adjustors and defense attorneys are often anxious to put your case behind them and will set forth several theories to limit your monetary recovery and to convince you to settle your case. It is often difficult to put a monetary value on our injuries and to know whether to accept an offer or continue to negotiate. When you are injured in an accident, you have several avenues available to resolve your personal injury case. This is an overview of the options to resolve your personal injury claim and what you can reasonably expect from these processes.
You Can Settle Your Case
You always have the option of settling your claim during your case. All settlements are voluntary. A settlement can be reached from the time of your injury to during the middle of a trial. These are some of the ways in which settlement comes about.
You receive an offer from an opposing party (wrongdoer) before or after your claim is filed. This can be, for example, if the opposing party calls you and make an offer or you receive an offer from the opposing party’s attorney. If the opposing party makes you an offer soon after your injury, be sure to get a professional opinion of the value of your claim so that you do not forfeit any viable claims or accept less money than you have a legal right to.The insurance company makes you an offer after you file your claim. This usually comes after the insurance company investigates your case and comes up with a dollar value for your claim. Insurance companies do offer favorable settlements in some situations because they figure that it would be more expensive to litigate the case than settle it. Be sure to consult with an attorney before agreeing to any settlement offer. Insurance and claims adjustors are often out to get a cut rate deal if they can and do not have the authorization to offer you more money whereas an attorney for an insurance company may be in a better position to offer you a more favorable settlement that you deserve.The opposing parties negotiate independently or through their attorneys and come to a settlement. This usually occurs after a claim is filed. Each party conducts an investigation or analysis of the facts and value of your claim. The parties then negotiate for an agreed monetary amount with the assistance of their attorneys.Settlement negotiations usually require some give and take by both parties. For both parties to reach a successful settlement, both parties usually have to give something up while there is always the possibility that they would have done better in trial. A settlement essentially trades the uncertainty inherent within a trial for a set amount of money and the coinciding terms of settlement. It is highly recommended that you have a professional opinion as to the realistic value of your case before you agree to any settlement.
You Can Go To Mediation
Mediation is part of the formal court alternative dispute resolution process and has gained increasing popularity as a more compassionate, less stressful means of resolving disputes. The parties meet in an informal setting, such as a neutral law office or in a meeting room located within the courthouse. The parties then, with the assistance of a mediator, negotiate with their attorneys to work out a settlement as to some of all of the issues. A mediator is a neutral third party, usually an attorney or retired judge, who listens to each party’s version of events along with the party’s expectations and then attempts to assist the parties to reach a compromise. Even if the parties cannot reach a complete settlement, it is possible that the parties can work out some of their issues at mediation.
A mediator plays a key role in settlement negotiations. The mediator serves as a facilitator for settlement negotiations, and has the responsibility of giving each party their evaluation of their case, its value, and their likelihood of success as trial. A mediator has no independent authority to make orders or to otherwise compel a party to settle a case. However, mediators can often be very effective in spearheading negotiations and settlements.
You May Decide To Attend Arbitration
Arbitration is a mini trial of sorts. Essentially, the parties agree to have a private trier of fact, often a retired judge but may be a neutral attorney, preside over their matter and make a determination as to which party shall prevail or win their case. Despite the informalities of an arbitration (it usually takes place in offices instead of courtrooms), arbitration still has the same formalities as any trial. The parties are expected to present actual evidence, abide by the rules of procedure and evidence, present trial briefs and witnesses, and to present their case as they would in a court of law. Some of the advantages of arbitration are that it often gets done faster than a trial, there is no distraction of a jury, the parties have more control over the trier of fact (that is, they can choose their arbitrator instead of a luck of the draw assigned courthouse judge), and arbitration can readily be rescheduled if necessary. Despite the additional expense of a privately compensated arbitrator, arbitrations have steadily risen as a choice for litigants in the dispute resolution process.
When All Else Fails, You Can Go To Trial
Trial is one of the more glamorous but least understood procedures in the legal system. Essentially, you present your evidence and your case to the trier of fact and they decide which party wins and the value of their case. There are two types of trials.
A jury trial. A jury, a sworn body of I.S. citizens at least 18 years old, is selected by the parties and the jury decides the issues of liability and the value of your case. The jurors are the trier of fact while the judge handles any issues related to the law.A bench trial. The trier of fact, a judge or commissioner, decides which party is liable and the value of your case.Trials tend to be one of the more time consuming and expensive legal procedures but they can be well worth it for a favorable verdict.
The facts of your case and the surrounding circumstances will influence how your personal injury claim will be resolved. To learn more about your options to resolve personal injury claims, contact Chris Thayer at (206) 966-4785.
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