Frequently Asked Questions
What is a “complaint”?
A lawsuit begins with the filing of a document called a “complaint.” The complaint contains details about the parties to the case, factual allegations underlying the lawsuit, the causes of action and the “damages” being sought. Once a complaint is filed the lawsuit is set into motion.
What is an “answer”?
The “answer” is a document filed by the “defendant” in response to a complaint. The answer contains a general response to each allegation in the complaint and may include potential affirmative defenses to each cause of action.
Who are the “plaintiff” and “defendant”?
The “plaintiff” is the person who files a lawsuit alleging injury or harm of some type. The “defendant” is the person or entity being sued who allegedly caused or contributed to the harm, or is otherwise liable. There can be multiple plaintiffs and defendants in the same lawsuit.
What is a “guardian ad litem”?
In lawsuits where the plaintiff is a minor or a person lacking legal capacity to make decisions, they lack the capacity to sue in their own names. Instead, a representative or “guardian ad litem” is appointed to sue on behalf of the minor or person lacking decision making capacity. The guardian ad litem is not a party to the lawsuit.
What are “damages”?
“Damages” is a general term used in law to describe the injury or harm suffered by the plaintiff(s) in a lawsuit. Damages are further separated into two categories–economic and non-economic. Economic damages include categories of harm that can have a monetary value attributed to it, for example, past and future medical bills and lost wages. Non-economic damages include types of harm that have no objective monetary value attributed to it, for example, the value of one’s pain and suffering or the loss of companionship and society of a deceased loved one. Because non-economic damages have no set value, it is up to a jury to determine the amount of non-economic damages to award at trial. Ultimately, the damages proven at trial will dictate the amount of monetary recovery.
What are "lost earnings"?
If you have been injured and missed work because of your injuries, part of the damages you are entitled to seek are the lost earnings from the work you missed. It is important to save pay stubs, tax returns, promotion emails and any other evidence of compensation if you are seeking these types of damages.
What are "lost earnings potential"?
If you have been injured and are unable to go back to work, or are unable to go back to work in the same capacity as before you were injured, you may be entitled to seek damages for lost earnings potential.
What damages can I recover in my case?
This depends on the type of lawsuit being filed. In a personal injury lawsuit, recoverable economic damages may include medical expenses, future medical expenses, loss of earnings, loss of future earning capacity and property damage. Non-economic damages in such cases may include pain, suffering, and inconvenience, emotional distress, loss of consortium and more. In a wrongful death lawsuit, economic damages may include funeral expenses, future contributions and value of personal service, advice or training. Non-economic damages in such cases may include loss of society and companionship. These are not exhaustive lists of damages, your individual case will determine the types and amounts of damages available.
Where does my lawsuit get filed?
In California, there is one superior court in each county. The superior court is divided into different departments (civil, criminal, probate, family, etc.). Each superior court has what’s called general subject matter jurisdiction, meaning it can adjudicate any and all cases brought before it. In personal injury or wrongful death cases, the lawsuit may be filed in superior court either in the county where the defendant(s) resides or in the county where the injury occurred.
What are “statutes of limitations”?
Generally speaking, the “statute of limitations” refers to the period of time one has to file a lawsuit. Each state has their own statutes of limitations and each cause of action has its own statute of limitations. The clock typically starts ticking on the date of the incident or discovery of a wrong. For example, in California, personal injury and wrongful death cases have a two year statute of limitations, meaning, if you don’t file a lawsuit within two years of the date of the injury or death, then you may be permanently barred from ever filing a lawsuit related to that injury or death.
Do I need to be a citizen to file a lawsuit for my injury?
No. In fact, in a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence and “discovery” into a person’s immigration status is not permitted in California.
What is “discovery”?
“Discovery” is a general litigation term that refers to the beginning stages of a lawsuit where both sides are gathering evidence for their case. Discovery can consist of written interrogatories or questions that the opposing side is obligated to answer truthfully. It also involves the production of relevant documents or tangible items that may turn into evidence down the road. Vehicle inspections in automobile collisions, property inspections in premises liability cases and medical examinations of the plaintiff(s) may also occur during discovery. This process will also typically include “depositions” of fact and expert witnesses.
What is a “deposition”?
A “deposition” is the process in a lawsuit whereby an attorney questions a witness, under oath and with a court reporter present transcribing everything said. Although depositions typically occur outside of court, the deposition testimony being transcribed may later be used as testimonial evidence at trial. Depositions may also be videotaped and the videotaped testimony may be played at trial as evidence.
How long does a lawsuit take?
A lawsuit may take several years to resolve, especially if there is an appeal on a judgment. On the other hand, a lawsuit may resolve quickly if it settles out of court. Each case has individual, particular factors that will dictate the length of the lawsuit.
What are my obligations if I file a lawsuit?
If you are a party to a lawsuit but are not represented by an attorney, you are what’s called a “pro se” litigant, this is Latin phrase for “on one’s own behalf.” As a pro se litigant you are responsible for every aspect of the lawsuit, either as the plaintiff or defendant. You will be responsible for attending hearings, filing paperwork and generally proving your case as a plaintiff, or defending a case brought against you as a defendant. It is highly recommended that you seek and retain counsel to represent you through this process.
What is the difference between criminal and civil cases?
Criminal cases are prosecuted by the state or government, defendants in criminal cases are accused of having committed a crime, for example, murder. Civil cases are prosecuted by one individual or corporation against another, defendants in civil cases are accused of having committed a tort, for example, negligence. Civil defendants are subjected to potential monetary punishment while criminal defendants can face imprisonment. It is possible for a single defendant to go through both a criminal prosecution as well as a civil prosecution for the same incident. For example, the OJ Simpson case involved both a criminal prosecution, in which OJ was acquitted, as well as a civil prosecution, where he was found liable and had to pay money. The reason this scenario can exist is because criminal and civil cases have different standards of proof.
What are standards of proof?
“Standard of proof” refers to the degree of certainty that evidence is true in order to prove a case. Plaintiffs in civil cases have the burden to prove their case “by a preponderance of the evidence.” This means that the plaintiff must prove that each element of her case is more likely true than not true. If an element in the case is 50.01% more likely to be true than not true, then the plaintiff has met her burden and the jury should treat that element of her case as having been proved to be true.
Whereas civil cases involve the lowest threshold for the standard of proof, criminal cases require the highest level of proof: “beyond a reasonable doubt.” This is because the consequences of a criminal case involve incarceration or death for the defendant, therefore, the case against the defendant must be proved at a much higher certainty. The prosecution must prove that there exists no other logical explanation other than that the defendant committed the crime. There are also other levels of standards of proof for different legal actions, but these are the primary two.
How does hiring an attorney work?
Typically, hiring an attorney starts with a simple phone call. If there is a potential case the attorney may ask for an in-person meeting to gather more information. If you have been injured or harmed and want to file a lawsuit, call an attorney. At Pan Law Group, Inc. we offer free consultations with an attorney. Call (949) 330-7620.
What is a “retainer”?
Once you have selected an attorney who you want to hire, and conversely the attorney is willing to accept your case, an agreement is signed between the attorney and the client called a “retainer” agreement. The retainer sets forth the attorney services being offered, the attorney fees, the client’s obligation as to litigation expenses and “liens” and the general scope of duties and responsibilities of each party.
What is “attorney-client privilege”?
All communications between an attorney and his client are confidential or “privileged” information. This means that any communication between an attorney and client does not have to and should not be revealed to anyone else. However, the privilege may be waived if such information is voluntarily revealed. Even before a retainer is signed and an attorney-client relationship is formed, a potential client’s communication during the initial attorney consultation is also confidential and is privileged information. It is important as a prospective client to inform the attorney of all facts of your case–good and bad–in order for the attorney to properly evaluate your claims and properly advise you as to the best course of action.
What are “attorney fees”?
“Attorney fees” refers to the monetary compensation given for an attorney’s work on a case. In general, attorneys will charge an hourly fee and may require an upfront retainer fee. The upfront retainer fee is kept in a trust account, portions of the retainer fee are then withdrawn as it is earned by the attorney by working on the case. Once the initial retainer fee is exhausted, the client replenishes the retainer with additional money. However, in the context of representing plaintiffs in civil litigations, Pan Law Group, Inc. operates under a “contingency fee.”
What is a “contingency fee”?
Rather than charging an hourly fee for attorney services, Pan Law Group, Inc. charges a “contingency fee,” this means that the attorney’s payment is contingent, i.e., dependent, on obtaining a recovery for the client. If the attorney obtains a recovery for the client, either by way of settlement, judgment at trial or any other means, then the attorney receives a percentage of the client’s recovery. If no recovery is obtained, then the client pays nothing and the attorney receives nothing.
What if I can’t afford an attorney?
One of the advantages of using a contingency fee agreement for attorney services is that the prospective client does not need to have any money in order to hire the attorney. Rather, the attorney takes a percentage of any recovery at the end. If no recovery is obtained, then the client pays nothing.
At Pan Law Group, Inc., the financial risk of filing a lawsuit is borne by the attorney who fronts all of the case costs and litigation expenses. Filing and litigating a lawsuit can be very expensive, the costs of a personal injury lawsuit may exceed hundreds of thousands of dollars, particularly if expert witnesses are involved. All of these costs are only reimbursed to the attorney if a recovery is obtained for the client. Other contingency based plaintiff law firms may require an initial deposit for case costs and may charge you on a regular basis for these costs.
Contingency fee agreements also incentivize the attorney to spend as much time as necessary on a case without a limitation or cap as to the number of hours worked because they are not working on an hourly basis, instead, the attorney essentially only gets paid if the client gets paid.
Do I need a lawyer if I don’t plan on filing lawsuit?
Hiring an attorney before filing a lawsuit has many advantages. For example, if you are dealing with an insurance company who is unwilling to tender the maximum policy amount, hiring an attorney who can negotiate the entire insurance policy amount may net you more money even after paying attorney’s fees. Additionally, in most personal injury cases there are medical liens which the injured party is obligated to pay if he obtains a recovery by way of settlement. An attorney can negotiate hospital and Medi-Cal liens down, significantly reducing the lien amount and thus increasing the net recovery for the client. As well, the filing of a meritorious lawsuit can be a powerful bargaining chip when trying to negotiate a settlement.
Do I have to pay the expenses in a lawsuit?
Yes. However, in the contingency fee context at Pan Law Group, Inc., all case costs and litigation expenses are paid for upfront by the attorney. As the client, you are obligated to reimburse the attorney for all case costs in the event the attorney obtains a recovery on your behalf. In the event no recovery is obtained, then you as the client are not obligated to pay the case costs associated with your lawsuit. NOTE: If you file a lawsuit and ultimately lose at trial, you could be obligated to pay the defendant’s litigation expenses. Nonetheless, each side typically bears the cost of its own attorneys.
Can I change lawyers at any time?
Generally yes. If you want different representation, for whatever reason, you can fire your attorney. If you are in the middle of the lawsuit, the attorney will need court permission to withdraw from the lawsuit. However, this is not ideal. First, hiring a different attorney will require more time and money. The new attorney will have to spend many hours reviewing evidence and catching up on the case and your trial will likely be pushed back. Second, the previous attorney will be entitled to a lien on any judgment that you may obtain for the costs and fees he had spent on your case before you retained new counsel. See below re: “liens”.
Does my attorney have my best interest in mind?
Yes. An attorney has a fiduciary duty to his client. This means that the attorney has to work and act in the best interest of the client. An attorney also has the duty of confidentiality, all communications between an attorney and client are privileged information. See above “attorney-client privilege.” Finally, an attorney has the duty of loyalty to his client. This means, for example, that if an attorney already represents Client A, he cannot represent Client B if it is against the best interest of Client A.
What do insurance “policy limits” mean?
An insurance “policy limit” is the maximum amount of money an insurance company will pay you for a covered claim. Insurance companies may refuse to pay you the policy limit if they think your claim isn’t covered or if they think the harm you suffered is less than the policy limit amount. This is where an attorney may benefit you and help maximize your recovery. For example, if a demand for the policy limit is made and the insurance company refuses to pay, the policy may be “open.” This means that the insurance company may be obligated to pay the full amount of a judgment, even beyond the policy limit amount.
What is the minimum automobile insurance policy in California?
The minimum automobile insurance for bodily injury liability that is required in California is $15,000 per person / $30,000 per accident. This means that if someone injures you and they only have the minimum required coverage, the most you could obtain from their insurance company is $15,000. In cases where your damages in an auto accident exceed the minimum $15,000 coverage for injuries, it is up to an attorney to find other liable parties who may have additional insurance or are self-insured.
What is a “lien”?
A “lien” is a legal mechanism that allows someone like a creditor to guarantee an underlying obligation by a debtor, for example, repayment of a loan. If the debt obligation is not satisfied, then the lien holder can seize the assets that the lien is attached to. You are obligated to pay all liens that have been asserted in your case. In the context of a personal injury lawsuit, liens are often asserted by medical providers and past attorneys.
For example, if you are injured but don’t have medical insurance, a hospital is still obligated to treat you. If your injury was caused by a third-party which ultimately results in a settlement or judgment from a lawsuit, then the hospital is entitled to assert a lien on any third-party recovery that you obtain. This means that you must pay back the hospital bill out of the settlement or judgment proceeds. Your attorney is required by law to pay back any liens asserted in your case before the net proceeds can be distributed to you, otherwise the attorney could be personally liable for those liens. Nonetheless, one of the main benefits of hiring an attorney is that he or she is able to negotiate these liens down. This results in a significant increase to the client’s net proceeds.
What is “Medi-Cal”?
“Medi-Cal” is a California’s Medicaid program that offers free or low-cost medical care to certain California residents with low income. If Medi-Cal paid for your medical services in connection with an injury which resulted in a settlement or judgment, then Medi-Cal is also entitled to assert a lien on such recovery. There are certain statutes and conditions that an attorney can invoke in order to reduce Medi-Cal liens and increase the net recovery to you.
What is a "settlement"?
A “settlement” is an agreement by both parties to a lawsuit to resolve the lawsuit outside of court without having to go through trial. In exchange for an agreed amount of money, the plaintiff voluntarily dismisses the lawsuit with prejudice, meaning he cannot sue the defendant for the same incident and harm in the future. The defendant does not admit any wrongdoing by settling and the settlement cannot be used as evidence of any wrongdoing.
Settling a case outside of court is ideal for several reasons. First, litigating a case through trial is very expensive. The cost of litigation may offset any recovery you may net after a judgment and it may be the case you could have netted more money had you settled before trial. Second, there is no guarantee that you will win at trial. Even with the best case and the best attorney, a jury trial is ultimately decided by twelve strangers who may have biases outside of your control. Settling a case guarantees you money now. Third, even if you win a lawsuit and the jury decides to award you a large sum of money, the defendant has the right to appeal the case. An appeal could take several more years, meanwhile you as the plaintiff will not receive any money during this time. An appeal could reverse your judgment or require a new trial. The trial judge also has the power to reverse your judgment or grant a new trial. Thus, settling a case is the only way to mitigate these post-trial risks.
What is a "mediation"?
“Mediation” is a form of alternative dispute resolution, i.e., a method of resolving a lawsuit outside of court and a trial. Mediation is an informal process that involves a neutral party called the mediator. His or her job is to evaluate each parties’ case and hopefully negotiate a settlement between the parties. Often if the only parties to a settlement talk are the parties to the lawsuit, each side will posture the strength of their case, making resolution difficult. The mediator, as a neutral party having no stake in the outcome, can evaluate the facts of the case from an unbiased perspective and give both sides a more realistic expectation regarding the potential result of the lawsuit. However, the mediator’s recommendation is not final and the parties are not required to adhere to any mediator’s decision or proposal. The mediator gets paid a flat fee regardless of whether the mediation results in settlement.
What Is "arbitration"?
“Arbitration” is another form of alternative dispute resolution, it is similar to a mediation except the process is formalized. Each party presents evidence to the neutral arbitrator and he decides the case. The main difference between mediation and arbitration is that the decision of the arbitrator is binding on the parties.
What to do when you’re involved in a fender bender or car crash?
- Stop the car, and if you can, safely pull over to the side of the road.
- Call 911 and report the collision to the police.
- Take photographs and video of the involved people, vehicles and the surrounding area.
- Exchange information.
- Go to a doctor if you are injured.
I have been injured, what kind of evidence should I save?
The best thing to do is save everything, you never know what piece of evidence may become more or less relevant down the line.
How do I get a copy of the police report?
Upon request and payment of a fee for actual copying costs, a copy of the police report shall be given to any person who has a proper interest therein, including but not limited to: the driver or drivers involved, or the guardian or conservator thereof, the parent of a minor driver, the authorized representative of a driver, or to any named person injured therein, the owners of vehicles or property damaged thereby, persons who may incur civil liability, and any attorney who represents the above persons.
I got injured on someone else’s property, can I file a lawsuit?
Yes. A property owner must keep his or her property in a safe condition. If a condition on the property caused your harm, you may have a claim for a lawsuit. Even if a condition on the property is obviously unsafe, a property owner may still have to use reasonable measures to protect against it.
My family member was killed in an accident - Do I have standing to bring a lawsuit?
In California, the following people can sue for wrongful death of a decedent: 1.) Decedent’s personal representative (Administrator or executor of decedent’s estate); 2.) Decedent’s surviving spouse, registered domestic partner, children and issue of deceased children, or if none, persons who would be entitled to decedent’s property by intestate succession; 3.) if dependent on the decedent, his or her putative spouse, children of putative spouse, stepchildren or parents.
What does "loss of consortium" mean?
“Loss of consortium” is a general term for the type of non-economic damages (both past and future) a surviving spouse of a decedent is suing for in a wrongful death action. It may include loss of love, companionship, comfort, care assistance, protection, affection, society and moral support; as well as the loss of the enjoyment of sexual relations or the ability to have children.
Have more questions?
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