Preparation Of Your Case
The interview is the first contact that you will have with us. Whatever you tell us in that initial conference is protected by the attorney/client privilege, so that it remains confidential between you and us forever. This is a helpful premise of our profession, and we know that it will encourage you to be truthful, candid and uninhibited in telling us everything you can about the problem which has befallen you. For example, in the average case it is quite important for us to know about your medical history and other accidents and claims.
Once we’ve heard your complete story, we’re in a position to initially evaluate your legal rights against those who may be responsible for your injury. In order to fully advise you of your rights, it’s necessary for you to supply us with insurance policies that you may have which provide for health benefits, automobile benefits or other coverages, such as homeowner’s, should such coverages be relevant to your claim. Therefore, at the initial interview or after that interview, please gather up all of your health, automobile, homeowner policies and/or insurance papers and explanatory booklets, so that we can determine their applicability or effect in your present claim.
After the interview, we will begin to investigate your claim. Our purpose is to identify those who can help in presenting your claim in court and who can bolster your position. We attempt to locate and identify witnesses and preserve evidence.
Preservation of evidence is particularly important in product liability cases, in which the success of the claim quite often depends upon having the product examined and evaluated to determine if it has any unnecessary dangers or engineering shortcomings that the law says are “defects.” Also, we believe it is important for us to have pictures of you, your injuries, and any vehicles, appliances, tools, people or places that may have contributed to your injury. Your assistance regarding the existence and location of these items is necessary.
At the same time we’re investigating the facts surrounding your injury, we will be gathering pertinent medical records and other data regarding the injury and the circumstances surrounding it. At the interview, you will sign authorizations for us to contact the people who have provided health care treatment to you. We will request copies of important and relevant medical records from the various hospitals and doctors that are involved. If you have lost, or continue to lose, wages due to absence from work because of the injuries sustained, we will obtain copies of your work attendance record, pursuant to written authorizations specifically to us, your earnings, wages, and/or business profits if it is appropriate to do so. If a claim of lost earnings is involved, we will eventually be required to substantiate that claim with these records, and in some instances the production of prior income tax returns is required. On occasion, investigation of witnesses, consultation with experts or other investigation may yield information adverse to your case. If so, at the appropriate time, we will endeavor to explain to you the effects of adverse information on your case and what to expect from our representation.
Negotiation And Settlement
Once we have completed the investigation phase, we’ll be in a position to evaluate more accurately the worth of your claim. This sets the stage for us to begin negotiating with insurance representatives and/or lawyers in an attempt to settle your claim. We usually notify, as soon as possible, the other party or parties involved by letter informing them that we represent you, and that they are not to contact you.
We request that they contact their own insurance company, so that their insurance company claims representative or lawyer will contact us regarding negotiation or settlement. In appropriate cases, we will make every effort to settle your case without the necessity of filing suit with all its expenses and delays. In other cases, we may form a judgment that it is better to immediately file a formal lawsuit rather than attempting to settle the case before filing suit. Each case is different, and we make this determination on the basis of the particular circumstances of your case.
As we review your case, we will form judgments about the predicted outcome in terms of both winning and value. To win we must convince a jury that the wrongdoer was careless, or that the product was unnecessarily or unexpectedly hazardous, or that professional conduct in treating your medical condition was substandard. At the same time, those who represent the wrongdoer (called the defendant after suit is filed) will try to defeat your case, or diminish its value substantially, by criticizing you as having been careless, inattentive or negligent in putting yourself in the predicament that led to injury. Necessarily, there is an unavoidable uncertainty in trying a lawsuit for you. The people who make up a jury are different; some may be inclined to sympathize and identify with you greatly, while others may be unsympathetic by virtue of their own experience and background. Our objective is to maximize a just compensation for you. Since our firm has represented thousands of injured people during the past 90 years, we’ve developed a wealth of experience in trying and in evaluating cases. As you might expect, the legal proof and strength of your case affects the value of any judgment. The severity and permanency of any injuries, together with the costs of medical treatment, and wage and income loss all enter into our assessment of the value of your case.
At the appropriate time, we will discuss with you our own judgment as to the value of your case. Often, we will express the value in terms of a probability of winning or losing, along with a probability or range of values. Quite frankly, it is impossible to predict a specific outcome in any case. We will appreciate your thoughts on the value of your case as two-way communication is important to us in this regard.
Most cases settle. Insurance companies conduct investigations just as we do. Under the rules of discovery following the filing of a lawsuit, we can learn as much about the other side’s case as they can about ours. By virtue of this exchange of information, the lawyers from both sides will have a very accurate prediction of what the evidence will be in most cases. Insurance companies will compare your case to similar cases in our vicinity and nationwide.
The lines of communication between you and our office for negotiated settlements always will remain open. Things may change during the course of representing you. Sometimes witnesses become unavailable due to sickness, death or relocation. Witnesses in trial may forget details that are important, change their minds or become frightened by questioning. These factors, and a great many others, affect the value of your case in front of a jury and settlement negotiations. Settlements can be agreed to at any stage of your case, even after a trial has begun or a verdict rendered. It is not unusual for cases to be settled by the parties after a final judgment, while the matter is on appeal.
We will give you our best advice as to whether you should accept or reject any offer of settlement. Some people are satisfied with an offer, which we believe is entirely too low. Others are dissatisfied with an offer, although we recommend that it be accepted. As your attorney, we serve as your agent and your decision will be respected.
Frequently, settlement negotiations are unsuccessful unless suit is filed, and the insurance company is made fully aware that you are serious in pursuing your claim to a just conclusion, by jury trial if necessary. At other times, we know from our experience with certain types of cases, or experience with certain insurance companies, that it is better just to file suit at the very outset after investigation rather than waste time conducting meaningless settlement negotiations.
In the event settlement negotiations are not productive, we generally will file suit on your behalf without further consultation with you. To do this, we draft a formal legal paper called a Petition or Complaint and file it with the appropriate court. The particular court in which suit is filed depends upon a complex set of rules known as venue. In some instances we have a choice of venue, and obviously we will pick the court which is most advantageous to the presentation of the particular facts of your claim.
After your suit is filed in the courthouse, a process server or deputy personally delivers copies of the suit papers to the wrongdoer, who is known as the defendant. The defendant then forwards these papers to the appropriate liability insurance company, which in turn obtains a lawyer to defend the case. The defense attorney will file formal papers in court entering his appearance and responding to the claim that we file. Insurance company lawyers usually deny that you have a valid legal reason to be compensated for your injuries or will assert numerous defenses to eliminate or reduce the responsibility of their particular client.
During the pendency of the suit, formal legal discovery will take place. The insurance company lawyer will send us written questions, called interrogatories, for you to answer. We usually will provide as much information to answer those questions as we can from the investigation, which is already in our file, and then we will forward those questions to you for review and completion. Your answers will be sworn under oath, and copies of them will be filed with the court and with the lawyer who submitted them. We, too, will send written interrogatories to the opposing parties requiring them to answer under oath.
After those questions and answers have been exchanged, depositions will be conducted. A deposition is a formal statement, under oath, given in response to questioning by the lawyers in the case. The defense attorneys have the right to take your deposition, to ask you about what happened, how you have been injured, and other background information. We also have the right to take depositions of the defendants. Depositions of witnesses to the accident or injuries may also be taken. We will send more complete instructions about depositions when yours is scheduled, and we will review your case and expected testimony with you before your deposition is conducted.
In a personal injury suit you may also be required to submit to an examination by an insurance company doctor to evaluate your injuries. Under certain conditions you may also be required to produce for the insurance company photographs, materials, documents and records connected with your claim, in addition to authorizations for the insurance company lawyer to get your past or present employment and medical records. At the same time the defense is literally discovering what your case is about, we are discovering what their case is about by using the same legal mechanisms — interrogatories, depositions, requests for admission and requests for production.