Hi, I’m Henry Pan, and I understand how daunting the legal system can be, especially if you have been injured in an accident and need compensation. I’m here to help guide you through some of the most important things you should know about personal injury and filing a lawsuit.
Since 2011 I’ve helped injured plaintiffs maximize their recovery in personal injury and wrongful death lawsuits. If you have no idea how the process works, you are in the right place. I will guide you through common issues as well as tactics for solving them.
I WAS IN AN ACCIDENT WHAT DO I DO?
Whether you have been injured in an automobile collision, at work, on someone else’s property, or any other accident, here are some things that you should do that will help your case:
- Take care of yourself!
Your health is the most important thing. If you have been injured you need to go see a doctor. Even after being discharged from the hospital, residual injuries are common and can take a long time to heal. Make sure to undergo any physical therapy, treatment, surgery or other recommendation by your medical provider.
TIP: What if I’m uninsured and can’t pay for medical care? This is a question I often get from clients. If your annual, or yearly, earnings are below certain maximum threshold levels, you may qualify for Medi-Cal. For example, a family of one (1) making $16,395 or less a year qualifies for Medi-Cal benefits; a family of four (4) making $33,534 or less a year also qualifies for Medi-Cal benefits. Alternatively, some doctors will see you on a lien basis.
- Document your injuries
Medical records and billings will only satisfy one part of what you need in order to prove your injuries and ultimately the amount of damages you can recover. Another major part is made up of things like physical pain, mental suffering, loss of enjoyment of life, deformity, etc. These non-economic damages often constitute the largest portion of an injured plaintiff’s compensation.
Therefore it is important to document your injuries and recovery process through photographs and video. For example, pre-accident versus post-accident comparisons of one’s deficits generate the most understanding of certain injuries like traumatic brain injuries. In addition, writing down how you feel in a daily journal may help you articulate and remember mental symptoms that can later be diagnosed to determine emotional harm.
- Save potential evidence
This may seem obvious but in the chaos of getting injured in an accident and recovering from your injuries, saving evidence for a potential lawsuit is the last thing on most people’s minds. Nonetheless, sometimes filing a personal injury lawsuit is the only way to receive monetary compensation for your injuries.
Therefore, you should save things like out-of-pocket medical bills, vehicle repair bills or adjuster estimates, photos/videos of injuries, hospital stay and recovery, a list of all medical providers you saw related to your injuries from the accident, and any accident-related documentation, etc.
Tip: What about my job? If your injuries from an accident prevented or prevents you from working, you may be entitled to damages tied to those lost earnings and lost earnings potential. Therefore, you should save pay stubs, tax returns, commission reports, tips received, and any other type of documentation that shows raises and promotions.
If you or a loved one have been seriously injured in an accident, hiring a lawyer may be the only way to get the monetary compensation you require for medical treatments and to make you whole in the eyes of the law.
A lawyer can help you demand the maximum insurance policy of a liable party. They can also help you reach a pre-lawsuit settlement potentially saving time and increasing your net recovery. If it becomes necessary, they can also represent you in a lawsuit for damages. Finally, they can help you resolve any liens that may eat into your net recovery.
- What if I can’t afford a lawyer?
Don’t worry! Most personal injury lawyers, including Pan Law Group, Inc., work on a contingency fee basis. This means there is no up front retainer fee to pay. Instead, the lawyer takes his fee as a percentage of any recovery at the end. If there’s no recovery, then there’s no fee.
- How do I hire a lawyer?
It’s as simple as picking up the phone or sending us a message through our online contact form. We offer free case evaluations and consultations. Keep in mind that all conversations you have with an attorney, even during the initial consultation, are subject to the attorney-client privilege and are therefore confidential.
Have a question? Ask a lawyer! Call us at (949) 330-7620 or click here for our contact form.
- Are my discussions with my lawyer confidential?
Yes. All communication between you and your lawyer are subject to the attorney-client privilege. This means that no one else gets to know what you and your lawyer talk about, not even the opposing counsel. Therefore, it is important to tell your lawyer the whole truth, even if you think it will hurt your case, this is the only way he or she can foresee potential issues and formulate a strategy to deal with them.
- Does my lawyer have my best interest in mind?
Yes. A lawyer has a fiduciary duty, duty of confidentiality and duty of loyalty to his client. A fiduciary duty means he must work and act in the best interest of his client. The duty of confidentiality is as described above. The duty of loyalty means that he cannot represent a new client or take on a case if there is a conflict of interest with his current client or case load.
- Can I change lawyers at any time?
Yes. You are the client and it is within your rights to change lawyers, whatever the reason. However, if you change lawyers near the time of trial, your trial date will likely get pushed back. As well, your prior lawyer will have a lien for attorney fees and case costs that he had expended on your case.
If you are representing yourself in a personal injury lawsuit without a lawyer, you are what is called a “pro se” plaintiff. However, it is highly recommended that you hire a lawyer to represent you. Without knowledge of the legal system and how to progress your case, you will be at a significant disadvantage without a lawyer. The following is some basic information you should know about filing a lawsuit:
STEP 1 – Know the Statutes of Limitation
A statute of limitation is a time limit within which one can bring a lawsuit. Different causes of action have different statutes of limitation. For example, in California, personal injury and wrongful death lawsuits must be filed within two (2) years of the injury or death. The rationale for this is so that relevant evidence does not become stale and that the lawsuit is litigated while witnesses’ memories are still relatively fresh. You will not be able to file a lawsuit if your injury occurred more than two (2) years ago, so make sure to contact a lawyer in order to preserve your rights.
STEP 2 – Small Claims, Limited Civil or Unlimited Civil?
If the amount of money in dispute or being claimed in your case is less than $10,000, you may file in small claims court. Small claims has cheaper filing fees and the process is less formal, but you can NOT have a lawyer represent you. If the amount in controversy is less than $25,000, you file what is called a limited civil case where damages are limited to that amount. Most personal injury and wrongful death lawsuits fall under unlimited civil cases where the amount of damages being claimed is more than $25,000.
STEP 3 – Filing the Lawsuit
A civil lawsuit starts with the filing of a document called the “complaint“ in the appropriate court with jurisdiction over your matter. In personal injury and wrongful death cases, the complaint may be filed in superior court either in the county where the defendant(s) resides or in the county where the injury occurred.
Injured on the job?: If you were injured on the job, you may have recovered some money through a workers’ compensation claim. However, this does not prevent you from filing a lawsuit for those same injuries in order to receive non-economic damages (like pain and suffering), which a workers’ compensation claim does not provide.
Was your spouse injured?: If your spouse was injured in an accident but you were not, you may still have a claim for loss of consortium. This is a separate claim for the loss of a husband or wife’s companionship and services.
Wrongful death?: Generally, if you are the spouse, registered domestic partner, child, grandchild, dependent or personal representative of a decedent, you have standing to sue for wrongful death. This is not an exhaustive list and there may be other relationships or scenarios that would entitle you to sue for wrongful death. If you’re not sure if you have standing to sue, give us a call at (949) 330-7620 for a free consultation.
STEP 4 – Discovery
The period of time between filing a lawsuit and the trial is generally called discovery. Its during this time that both sides to a lawsuit gather evidence for their case. This comes in the form of written interrogatories that each must answer under oath, requests for various admissions, production of documents and tangible items, depositions, experts, vehicle inspections, medical exams, etc.
An attorney handles all of these things. As a plaintiff, you are responsible for helping your attorney gather certain evidence that only you have access to, for example, pre-accident family photos. As part of the discovery process your deposition as the plaintiff will likely be taken. As well, you may be examined by the opposing party’s medical expert.
STEP 5 – Trial
Trial begins with the selection of the jury, followed by opening statements, the presentation of evidence and closing arguments. As a plaintiff you can be expected to be giving live testimony on the witness stand in court. The defendant(s)’ attorney will also have the opportunity to cross-examine you during this time. At the end of the trial the jury will provide their verdict.
STEP 6 – Appeal
Even after receiving a verdict in your favor, the losing party has the opportunity to appeal the case. However, they must post a bond for one and a half times (1.5x) the judgment amount. The judgment also earns interest during this time.
Tip: How long will my case take? A trial date is typically set one (1) year out from the filing of a lawsuit. However, due to court resources, case specific issues, trial continuances, scheduling and multiple other variables, the average lawsuit may take one and a half (1.5) to two (2) years to get to trial. A post-trial appeal may take an additional year or more. If there are any liens attached to your lawsuit, those may also take several months to resolve. Therefore, a lawsuit could take several years to resolve from beginning to end.
This is another common question clients will often ask me. However, the answer is more complicated than you may think. There are five (5) variables that go into the value of your case and calculation of your net recovery: (1) Damages, (2) Liability, (3) Insurance, (4) Litigation Costs and (5) Liens.
1 – Damages
The baseline value of your case starts with your “damages,” this refers to all of the categories of harm that you’re able to recover monetary compensation for. Damages are split up into economic and non-economic damages. Economic damages are things like medical bills, future medical costs, property damage, lost wages, etc. These are objective numbers that can be calculated.
On the other hand, non-economic damages are things like physical pain, mental suffering, loss of enjoyment of life, disfigurement, etc. There is no set list and there is no set formula for calculating such damages. Rather, it is up to a jury to decide at trial what amount to award.
Therefore, the more harm you have suffered, the higher your damages and the higher the value of your case. While the value of your damages will always be the same, the value of your case will also depend on the remaining factors.
Tip: What are punitive damages? Punitive damages are available in instances of fraud and malice by the defendant. They are designed to punish and deter future bad behavior.
2 – Liability
Liability refers to the degree of responsibility that someone has who caused or contributed to your harm. Both individuals and companies can be liable. For example, an employer is liable for its employees negligent conduct while on the job.
You are also responsible for your own safety. For example, if you were injured in a car accident but weren’t wearing your seat belt, a large percentage of your harm was caused by your choice of not wearing a seat belt. This is called contributory negligence, or comparative fault. Any judgment awarded will be discounted by the percentage of your contributory negligence, if any is found.
Therefore, the more liable the parties are that you’re suing, and the less comparative fault you have, the higher the value of your case.
3 – Insurance
The ability of the liable party to actually pay you is a key component to case value, and probably the most important part for the client. Insurance is the typical way most settlements and judgments are paid. This is because insurance companies are incentivized to settle within their insured’s policy limit. If a demand for some amount at or below the insurance policy maximum is unreasonably denied by the insurance company, and later a judgment is awarded for more than the maximum policy amount, then the insurance company can be liable for the entire judgment. In such cases the policy is considered “open.”
The minimum required automobile insurance in California is only $15,000 per person and $30,000 per incident. If you’re seriously injured, this amount will likely not cover your required medical expenses. Part of the lawyers job is to find additional, liable and solvent parties. However, if none exist, your case value is significantly diminished without a liable party who can pay for your damages.
4 – Litigation Costs
Filing and litigating a lawsuit costs money. This is separate and apart from the attorney’s time and what he charges for his services. Costs, disbursements and litigation expenses commonly include court fees, jury fees, service of process charges, court and deposition reporters’ fees, interpreter/translator fees, outside photocopying and reproduction costs, notary fees, long distance telephone charges, messenger and other delivery fees, postage, deposition costs, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, consultant, expert witness, professional mediator, arbitrator and/or special master fees, computerized legal research costs and other similar items.
The closer you get to trial, the more you can expect case costs to increase. Actual trial costs are also significant and can easily exceed hundreds of thousands of dollars. All litigation expenses will be deducted from any recovery you receive, either by way of settlement or judgment. Therefore, it might make sense to settle before incurring large case costs like retaining expert witnesses which will eat into your net recovery. NOTE: If you lose at trial, you could be obligated to pay the opposing sides’ case costs.
5 – Liens
In the context of personal injury lawsuits, a lien is the right by the lien holder to be repaid for the cost of services that were rendered in connection with your injury. The lien is attached to the lawsuit, therefore the lien holder will be entitled to be repaid using the recovery obtained by way of settlement or judgment. For example, if your medical expenses for your injuries were paid for by Medi-Cal, they will be entitled to a lien for the cost of medical care that was rendered.
All liens must first be paid before any disbursement of funds to the client. A large lien could totally offset any recovery that you may obtain. Fortunately, they are negotiable, part of the lawyer’s job is to reduce any lien numbers down, thereby increasing the client’s net recovery. If you have a large lien attached to your lawsuit, know that any recovery will be offset by that lien.
Settling your case outside of court is the only way to guarantee monetary recovery. Unlike many other countries where one adjudicator will determine your case, our Constitution guarantees us the right to a trial by a jury of our peers. It is up to a group of twelve (12) strangers in your community to decide your case. While this has several advantages over a single judge, it also means that no trial verdict is guaranteed. The only way to guarantee money is by settling outside of court. Here’s how:
- Pre-litigation Demand
Filing a lawsuit could take years to resolve and the result is not guaranteed. Even if you win, its possible you could net less than a settlement because of litigation costs. Therefore, it makes sense to try and resolve the case even before filing a lawsuit. Your lawyer will be able to draft a pre-litigation settlement demand on your behalf, often the threat of filing a lawsuit is a powerful negotiation tool. However, know that without clear liability and damages, a lawsuit may be necessary so that all parties may conduct discovery and perform their due diligence in order to value the case.
Mediation is a cost-effective solution for resolving a case and reaching a settlement. The process of mediation starts by hiring an agreed upon neutral mediator. The cost is usually shared by all parties and is typically a few thousand dollars. The parties may submit a mediation brief to the mediator outlining their case. During the mediation, all parties are in separate rooms while the mediator floats in between to try and resolve the case. The best time to mediate will be when some amount of discovery has been conducted but the bulk of costs have yet to be expended, for example, before trial and perhaps before retaining experts. Don’t forget, you can settle your case at any time, even the day of trial.
- Post-trial Settlement
Most of the large verdicts you see advertised on attorney’s websites never get paid. This is because the judgment from the verdict often gets appealed. In these instances, the injured plaintiff might settle for some amount less than what the jury awarded because he or she needs money for medical treatment now. As well, the outcome of an appeal could very well be a reversal of your judgment, settling guarantees you money.
A lot of common words used in normal English conversation have a different meaning when used in law. That’s why we created an FAQ to answer some of our clients most commonly asked questions.
Understand in more detail “What happens when you sue someone?”
Read our in depth discussion on the question of “What is my case worth?”
Learn more about mediation and the “Top 5 reasons why you should mediate your case.”