Many times clients fear that by going to a lawyer, they are necessarily filing a lawsuit against the other party. As a result, many are reluctant to talk to a lawyer about their personal injury case because they “don’t want to file a lawsuit.” When I explain they are not bringing a lawsuit, but instead, they are filing a “claim” against the responsible party’s insurance company (or sometimes their own company) they have trouble understanding the difference.
Usually, the first step is simply filing a claim for injury. This is purely a conversation with the insurance company. No lawsuit is filed or any official paperwork with the court. The only time you will actually file an official lawsuit is if you cannot reach a settlement agreement with the other party’s insurance company, and therefore, the only way to change the landscape is to file a lawsuit with the court. However, you need to be mentally prepared to file the lawsuit. Filing in the court system can take its toll on you and your family. It’s not a decision you should enter into lightly.
If you decide to file a lawsuit against the responsible party, formal paperwork known as the “complaint” is filed with the court. The defendant (the responsible party) then has to “answer” the complaint by filing something called the “answer” with the court. After all parties have engaged, there is a formal “discovery” process between the parties during which time each party is entitled to learn more about the other party’s position. This involves sending questions and requests to each other, all of which need to be answered under oath. There also might be depositions which are essentially formal question and answer sessions where testimony is recorded by a court reporter.
I try to explain to my clients that most cases resolve themselves before a formal lawsuit needs to be filed. Sometimes you need to file a lawsuit because you’re running out of time, and the statute of limitations is about to expire. Simply put, the statute of limitations is the time frame during which a lawsuit must be filed. If it expires, you cannot file a lawsuit in most cases. As of this posting, California’s statute of limitations is two years on most personal injury matters.
Recently, a client came to me who had been hit by an automobile while he was riding his bike. The other party turned right in front of him and caused an accident to occur. By all accounts, the accident wasn’t his fault. The impact was so strong, that he flew off his bike about 22 feet into the air, and landed on another vehicle. He had several severe orthopedic injuries (broken clavicle, cracked ribs, facial lacerations, etc.), and he was taken to the hospital. It turned out he needed further orthopedic care and possible surgery.
When I first met with client, he told me of a police officer who witnessed the accident. The officer apparently assured my client it was not his fault, and the other party was very apologetic scene. My client was sure the accident was not his fault, especially after what the officer told him and the apologies of the other party. All signs were in his favor.
I told my client that after so many years of practicing law, he should not be surprised if everyone’s story changes. My client was surprised I would say such a thing. Perhaps I was being too careful? Perhaps I didn’t want to have too much confidence so early in the case? Sure enough, we got a call the next day from the insurance company for the other party. The driver of the car had a change of heart. She now alleged my client caused the accident by riding his bicycle too fast.
When we obtained the police report about two weeks after the accident, we found the police officer had found against my client and cited him for riding his bicycle too fast for the circumstances – a violation of California Vehicle Code 22350.
The lesson here is that you should never assume what the police officer is going to say, what the police report is going to reveal, or whether were not the other party will accept fault. Even if the other party accepts fault, that doesn’t mean his/her insurance carrier will agree. Also, your insurance company and the other party’s insurance company might disagree. I had a case recently where my client’s insurance company found in her favor, while the other party’s insurance company found against her. Never be surprised, because people can change their tune. What you think will happen doesn’t necessarily unfold the way you might expect.
I remember one client didn’t hire me because she thought I was being pessimistic. I tried to persuade her I wasn’t being pessimistic, but I was trying to be realistic. I wanted her to be prepared for differing versions of the accident. I told her there are courthouses all over the United States full of people who disagree about this or that. It is my opinion that by advising my clients of these possibilities in advance, they are better prepared for such developments as they unfold during their claim. Of course, we hope everyone will stick to their story, but that isn’t always the case.
People change their minds. What you THINK you heard at the scene of an accident may not actually be the entire story. You may have heard bits and pieces, and your brain jumped to certain conclusions based on what you perceived to be the truth. Wait till all the facts are in before you make conclusions about your personal injury case.
by Robert Mansour
Robert Mansour is a personal injury lawyer serving Santa Clarita, Valencia,