Hello, everyone. This is Robert Mansour, and I'm making this brief video today from my office to discuss the issue of liability when it comes to personal injury cases. When clients call my office for the very first time after an automobile accident, one of the questions that I ask them is, "What happened at the scene of the accident?" Did the other party admit fault for the accident or did they come out of their vehicle and start yelling at them accusing them of causing the accident? If a prospective client tells me, "Oh, the other guy, he got out of his car and he started pointing the finger at me. He said I ran the red light. He told the police officer I ran a red light, and then I told the officer no, he ran the red light."
You see what you have there? You have a "he said, she said" or "she said, he said," or whatever you want to call it. The point is that when your opinion about what happened differs from the other party's opinion, you're going to have something called "disputed liability." If you have disputed liability, here's how that plays out - You go home and you call the lawyer's office, and the other guy, he calls his lawyer's office. Now you are both coming after each other and suing each other and making claims against each other. Or never mind that. Let's say, for example, you bring a claim. He calls his insurance company. He says, "No, no, no...that's not what happened at all. The other fellow caused the accident." The point is this: If the insurance company for the responsible party believes their client, they're just not going to pay you. They're going to dig their heels in the sand, and you're going to have disputed liability.
People say, "Well, yeah. That's what a lawyer is for. That's why I'm calling a lawyer." This is when I have to explain to the client that if you have disputed liability and the insurance company for the responsible party is not budging and they're not seeing it your point of view, you have to ask yourself at that point, "Is it really worth involving a lawyer? Is it worth me spending two years in court, spending thousands of dollars to pursue this person and bring a claim against them?" Frankly, you're not really going to be involving that person at all. It's really going to be between you and their insurance company most of the time. They may not even know that you're doing anything. It's all happening behind the scenes.
I tell clients that it might be worth the fight if, for example, you have injuries that are so severe that you are in a wheelchair for the rest of your life or you had major surgery as a result of the accident or some other significant injury. Then it might be worth two years of your time or more fighting in court with a lawsuit, paying thousands of dollars to go through this. If all you've got is some minor whiplash from the accident, I think you should think two or three times about bringing a claim against the other party because all you're going to do is dig yourself into a financial hole, at least conceivably. Then you end up worse off than you currently are.
Just because the other party is disagreeing with you doesn't necessarily mean you should file a claim. Even though it might not feel right to you and it might be upsetting and frustrating, but sometimes you just have to do the smart thing. One of the issues is liability. By the way, just because the other party admits fault to the accident doesn't necessarily mean that party's insurance company is going to agree with their client's assessment. They may disagree and they may still decide to fight you on the issue of liability. Then you have to weigh and balance your options, and decide whether it is a wise decision to bring a claim or not.
Thank you very much for watching this video. I hope you found it very helpful. If you have any questions regarding your personal injury case, please feel free to contact my office. Thank you very much. Call (661) 414-7100 if you need help with your personal injury case.
Bringing a Lawsuit Versus Making a Claim
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.
Stages of a Personal Injury Case
The steps of a lawsuit can be quite complex. Your chance of success in a lawsuit is contingent on whether you can make the right decisions at the right time during this process. An experienced lawyer can help you assess your case and make the right moves. As a party to a lawsuit you have the right to hire an attorney to help you navigate your way through this complex process. More often than not, it is a good idea to contact an attorney to advocate on your behalf to get the best resolution to the dispute. You don’t want to be the party that does not have an attorney. Do not go up against an experienced professional all by yourself.
The litigation process can vary depending on the case, but generally speaking, it proceeds as follows. Two or more parties have a dispute. The dispute might be over a personal injury, a car accident, financial loss, medical bills, emotional distress, wrongful death, or some other matter.
Certain types of cases require a lawsuit to be filed by a deadline. Don’t be reluctant to learn if you have a good case. See a lawyer to discuss. The time requirement is called a statute of limitation. It is important to make sure that you file your lawsuit before the deadline. The law imposes a deadline because as a matter of public policy, we generally cannot hold people responsible forever. Determining what deadlines apply is another reason why it is important to contact an attorney early on in the process. Your attorney can check to make sure you beat the deadline and can help file your lawsuit properly.
In some states it is necessary to make a formal demand to the other party before filing a lawsuit. Often a great way to satisfy this requirement is to have your lawyer send a letter to the opposition stating your demands. A lawyer’s letter is ideal because it not only satisfies the formal demand requirement but it also prompts the opposition to take you seriously. In some cases, your attorney may be dealing with the other party’s insurance company instead of dealing with the party directly. In motor vehicle accident cases, the party at fault is generally covered by insurance, so their insurance company would be responsible for settling the dispute.
Once the formal demand has been made, pre-litigation settlement discussions usually take place between your attorney and the opposition. If a settlement cannot be reached and you are the plaintiff, or in other words, the person seeking monetary or some other kind of relief, the lawyer will file a complaint on your half with the municipal, county, state, or federal court depending on the specific circumstances involved.
In some cases (usually contractual), arbitration might be required instead of a lawsuit. Arbitration is similar to a trial but it is less formal and its judgment may or may not be binding. Your attorney will be able to represent you in the arbitration process. The complaint is a written explanation to the court claiming what has been done to you and what relief is sought. The complaint must be officially served to the other party. This is usually done through a service of summons. Serving the other party can be a tricky process.
Sometimes the other party must first be tracked down then served personally. At other times a summons must be published in a newspaper. Regardless of how the other party in your lawsuit must be served, your attorney will handle this task for you. If you are the defendant, or the person being sued, your attorney must and will file an answer, or a written response, to the complaint on your behalf. As the defendant you typically only have 20 to 30 days to respond to a complaint. Within this time frame you must either, admit or deny the plaintiff’s claim, move to dismiss the lawsuit, and/or assert legal defenses to the plaintiff’s claim. This is a crucial step in the lawsuit process and your attorney will be able to help you to respond in the best manner possible. At this point the defendant can also file a counterclaim or cross complaint, which is a complaint against the plaintiff (or in some cases, another allegedly responsible party). If you are the plaintiff, and the defendant files a counterclaim against you, it would behoove you to have an attorney to defend you against the counterclaim.
Next, the attorney will come up with a discovery plan and a timeline for your lawsuit. The purpose of discovery is for the attorneys to find out what evidence both sides have in their favor in the lawsuit. Both sides generally will be asked to answer interrogatories, or written questions; to partake in a deposition, or oral questioning, which must be answered under oath in front of a court reporter. If this happens to you, your attorney will be present to assist you through this process. You will need to verify your injuries and you could be asked to produce other types of evidence as well.
During this time your attorney can line up expert witnesses on your behalf, accept or reject arbitration, file a motion to compel the other party to reveal information, move for the lawsuit to be decided without a trial, and/or file a motion to narrow issues of the lawsuit or for summary judgment.
If the lawsuit continues, both parties will be asked to attend a pre-trial conference, or a settlement conference, in which the attorneys will try to reach a settlement in order to avoid the uncertainty and expenses of trial. If the settlement talks fail, the matter will head to trial or arbitration. If this happens, your attorney will assist you in presenting evidence and statements to a jury or judge and calling witnesses to testify.
At trial, the process usually is as follows. Both sides present their opening statement, present evidence, cross-examine the other side’s witnesses, and present a closing argument. After both sides have presented their cases, the judge will give instructions to the jury or the judge will decide the case. Next, there will be a judgment based on the jury’s or the judge’s decision.
If either side is unhappy with the judgment post-trial motions and appeals are likely to follow. Either the winner or loser can appeal. Even a winner might appeal the amount of the reward. Both sides have a right to make an appeal if there was a legal error made at trial. An appeal could take a very long time.
After all is said and done, the next step is to collect the judgment. Collecting the judgment can take a lot of twists and turns and become very complicated. It is a good idea to have an attorney to assist you in this process.
by Robert Mansour
Robert Mansour is a personal injury lawyer serving Santa Clarita, Valencia,