The Three Stages of Your Car & Motorcycle Accident Case
Every car and motorcycle accident case has the potential to go through three stages of the legal process. Those stages are Pre-litigation, Litigation and Trial.
Pre-litigation
In most cases your lawyer has two years from the time of the accident to file a lawsuit in court. During that two year period your attorney may settle the case with the other party. Usually this involves your lawyer sending medical records, police reports and other evidence to the insurance adjustor with the goal of negotiating a settlement amount. Many cases are resolved in the Pre-litigation phase and never go to court.
One of the limitations facing the lawyer and the client is the policy limits of the insurance policy of the person who caused your damages. While everyone who drives a car must have insurance, the amount of coverage each person has varies widely.
In California the minimum limit for bodily injury is $15,000.00 per person injured and $5,000.00 for each property damage claim. Therefore if you have an accident with a person with the minimum limit the most you can get from their insurance policy is $15,000.00 for personal injury and $5,000.00 for property damage. This is even if your damages far exceed those amounts.
As an example, if you have $100,000.00 in medical damages and the person only has coverage of $15,000.00, then you would still be owed $85,000.00 once the insurance company pays you. At that point you could bring a lien on the person’s property for $85,000.00 and attempt to force the sale of the property to satisfy your damages. However, if the person does not own anything worth the damages amount, your options are very limited and you could be reduced to a salary garnishment which could take years to satisfy your damages. Also, to bring a lien on personal property you would need a judgment meaning the individual would have to agree to the damages amount and enter a judgment in court or you would have to go to trial and get a judgment by a jury or judge. The costs and expenses associated with getting a lien on personal property is often prohibitive and thus oftentimes the policy limits are the most you will get for your damages.
The Pre-litigation phase may also include an informal hearing with a retired judge where efforts are made to settle a case. This is called a mediation.
Litigation
Once a law suit is filed in court on your behalf then the matter is now in the Litigation phase. From this point on the Insurance Company will no longer be represented by an insurance adjustor, instead a lawyer will represent the insurance company. Your lawyer and the insurance company lawyer will file various papers in the court. First your lawyer will file a Complaint which states the basis for the lawsuit (i.e. your injuries) and the amount of damages sought. The lawyer representing the insurance company will file an official response denying the demands listed in the Complaint. Once a suit is filed you will be formally designated as the Plaintiff in the suit and the party that caused your damages will be designated the Defendant. From that point on the parties will engage in a back and forth of demanding information from one another. The Defense will request proof to support the claims for damages like medical records for example; the Plaintiff may require that the Defendant answer questions about the accident to establish fault. It is in the Litigation Phase that the parties can depose one another. A deposition is a formal hearing outside of court where the person testifying does so under oath and where a sworn court reporter takes down everything said during the deposition. Usually at a minimum, the Plaintiff and the Defendant are deposed. The questions usually pertain to the facts of the accident, the injuries which occurred and how the injuries effect the everyday life of the victim. In addition, medical and economic experts hired by the parties may be deposed to offer evidence as to the long term effect of certain injuries on quality of life or long term effect on job opportunities and the ability to earn an income.
The Litigation phase can take months or even years. If that case does not settle at the Pre-litigation phase then it is very likely that they case will settle at the Litigation phase.
Trial
If the case is unable to settle the final decision will lie with a Jury or a Judge at trial. There are two issues before the Judge or Jury. The first is liability. That is, is the Defendant responsible (or liable) for the injuries to the Plaintiff. If the Judge or Jury determine that the Defendant is responsible then the second issue is damages. The Judge or Jury will have to determine what amount of damages the Plaintiff is entitled to.
In the case of a Jury, three-fourths of the Jurors must find that the Defendant was responsible for the injuries or damages to the Plaintiff. If there are 12 jurors that means that 9 jurors must agree the Defendant is responsible. After the liability determination is made three-fourths of the Jurors must agree on the appropriate amount of damages.
Once a Jury or Judge makes a judgment for money damages the Defendant must pay it. If the Defendant is insured the Plaintiff has a good chance of getting paid for his damages. If not, then the Plaintiff may have to bring a lien against the Defendant’s property, garnish wages or take other measures to collect.
Excluding appeals, the judgment on damages is usually the end of the case.
Attorney Fees
Most lawyers do not charge any money for representation on a car or motorcycle accident case. Instead they take a percentage of the final award. This arrangement has been boiled down to the familiar refrain: “We don’t get paid unless you do.” Generally, the farther into the process the case goes, the lawyer’s contract will specify a higher percentage of the award. Typically in the pre-litigation phase an attorney will demand around 30% of the award; for the litigation phase the attorney may demand 36% and after trial the attorney may demand as much as 40% or more. Also, some lawyers may deduct the costs of expert fees and other trial costs from the client’s share as specified in the contract. These percentages vary and the client should review the contract carefully.
