What Happens in a Personal Injury Case?
This article explains the progression of a personal injury case from the time of an accident to settlement or a trial and what happens in a personal injury case.
The Beginning of Your Case — Investigation
Upon the start of your case, we will obtain a copy of the police accident or aided report if one was made, and send various claim notices will be sent to the persons and companies responsible for causing your accident and to their insurance companies. Various forms will be completed, such as a no-fault application and MV-104 and many other forms.
We will investigate to determine all possible responsible parties and their insurance companies. We will determine how much insurance is available and conduct a search to locate additional insurance policies. We will perform searches with the NY Secretary of State and the County Clerk’s office and request your hospital records. We will also conduct other investigations and send various other letters.
Medical Treatment — Proving Your Injuries
You will see various doctors, such as an orthopedic surgeon, physiatrist (PMR), neurologist, and possibly a dentist, psychologist, physical therapist, etc. It is important that you do not miss appointments with your doctors. After you have completed the majority of your treatment, usually within 3-12 months, we will request copies of your medical records and narrative reports from your doctors.
In order to obtain reimbursement for your pain and suffering, we have to prove, either to the defendant’s insurance company, or to a jury at a trial in court (if it should get that far), how you were injured and how your injuries will affect you in the future.
The way that we prove your injuries is similar to proving damage to your car in a car accident. To prove the damage to your car, you need to obtain an estimate or paid receipt for the repairs.
To prove the damage to your body, we will obtain your medical records, narrative reports, and medical bills from your doctors, which will state your diagnosis (what your injuries are); prognosis (what will happen with your injuries in the future); the length of time you were treated by your doctors; the number of visits you made to your doctors; your complaints of pain; the treatment you received; and results of diagnostic tests.
It is for this reason that it is important for you to visit the doctor as long as you are still in pain, even if the doctor may not be successful in alleviating your pain. When you go to the doctor, your doctor will create a medical record indicating what you said about your pain. Those medical records are the evidence we need to prove your pain and suffering. Additional proof of your pain and injuries will be provided by the neurologist and radiologist, who will perform various tests such as X-Rays, MRI, EMG, and other important tests that will document the damage done to your bones, spine, nerves, muscles, or tissues.
After we have obtained all of your medical records and reports, we will forward a settlement package to the insurance company and discuss the settlement of your case.
A legal document called a Summons and Complaint may be sent to a process service to serve the defendant(s) with a copy sent to the defendant’s insurance company. This document starts a lawsuit and makes legal allegations about the defendant’s negligence and your injuries.
After the Summons and Complaint are served on the defendant(s), their insurance company will assign an attorney to represent the defendants. Within 60 days, that attorney will send us various legal documents, including the defendant’s Answer to the Summons and Complaint, a Demand for a Bill of Particulars, Demands for Discovery and Inspection, and a Demand for your Deposition.
The Answer is a legal document that will deny most of the legal allegations we have made in the Complaint. This is normal and, in fact, would be legal malpractice for a defendant’s attorney not to deny the allegations. The defendant’s Demand for a Bill of Particulars and Demands for Discovery and Inspection are lengthy legal documents that demand a substantial amount of information, requiring us to provide more detailed information about your case, including the laws we claim the defendant violated, your injuries, and other information relative to your case.
After receipt of the defendant’s Answer, this office will serve the defendants with the plaintiff’s Demand for a Bill of Particulars, Demands for Discovery and Inspection, and a Demand for a Deposition of the defendants. The plaintiff’s Demand for a Bill of Particulars and various Demands for Discovery and Inspection are legal documents (22 pages) requesting detailed information about the defendant’s case, which the defendant intends to use at the time of trial. This information is needed by us to question the defendant at a deposition and to be used at the trial.
At this time, we will request a Preliminary Conference in court to obtain a court order setting up all of the dates for all of the various parts of your case, including the date for the depositions of both you and the defendant, your medical exams the date when we are required to certify your case ready for trial, and various other dates.
Sometimes a “motion” is needed to obtain a court order, ordering the defendant to comply with a request, or a motion may be made requesting the court to find that the defendant is 100% responsible for causing your accident. A motion is like a mini-trial concerning a specific issue, such as the defendant’s refusal to provide needed information. It usually takes 4-8 months for the judge to issue the court’s written decision on the motion.
At a deposition, also called an EBT or Examination before Trial, you and the defendant will testify under oath before a court reporter. This testimony may be used later at trial. Most attorneys will prepare you for 30-60 minutes in the morning before your deposition. However, we will prepare you to testify at your deposition at our office during the week before your deposition, where you will watch a DVD showing you an accident and a deposition with someone answering questions the wrong way, then the right way, and explaining how you should answer questions.
Within 60 days after your deposition is completed, you will be required to submit to physical exams by doctors of the defendant’s choosing. The defendant is legally entitled to have you examined by a doctor of each medical specialty in which you were treated.
The physical exams usually take approximately 5-10 minutes each and will only consist of the doctor asking you about your injury and physically examining you. The doctor will not be allowed to take any blood tests, X-rays, or, any other tests. The physicals may be performed by a doctor of the defendant’s choosing anywhere in the county where you live. You will, unfortunately, have to appear at the physicals without reimbursement for lost wages or transportation. Failure to appear at these physicals will result in the court dismissing your case.
The defense doctors are paid a lot of money to claim that either you were not injured, your injuries were not caused by the accident, or you have fully recovered from your injuries. Most attorneys will send you to your physical alone. However, we will be there with you, and we will even bring our own doctor with us.
After your physicals, your case may be certified to the court as ready for trial. Due to the backlog in the courts, it may take 18 months to 3 years on a waiting list to obtain a courtroom for the trial. However, a settlement of your case may still be reached at any time during this process.
If you are 70 years of age, you are entitled to a special preference that puts you at the front of the line of cases waiting to go to trial.
Alternative Dispute Resolution
Submitting your case to Alternative Dispute Resolution (ADR), such as arbitration or mediation, can resolve your case in 2-3 months after both sides have agreed to use this method to resolve your case. Additionally, mediation or arbitration Can cost $1,000-$1,500, while a trial can cost $15,000-$40,000.
Mediation is a process where we meet with the insurance company meet and a retired Supreme Court judge who will listen to our arguments and then meet with each side separately several times over the course of an hour or two and attempt to negotiate a settlement. We cannot force the insurance company to mediate. Offers obtained at mediation are not binding unless you accept the offer.
Arbitration is similar to mediation but is a more formal process and results in a final and binding decision that you must accept.
The procedure mentioned above is simplified here and is far more time-consuming than it may appear, but it does not mean that your case will have to go to trial. 99% of cases are settled before trial. A settlement may be reached anywhere along the way.
Phil Franckel is well-known in New York and has been a personal injury lawyer since 1989. He is a Founding Partner of 1-800-HURT-911, LLP®, the Personal Injury Dream Team™, and a former Member Board of Directors of the New York State Trial Lawyers Association. He has an Avvo Top 10 Rating, Avvo Client’s Choice Award with all 5-star reviews, Avvo Top Contributor Award, Multi-Million Dollar Trial Lawyers Award, and others. See Mr. Franckel’s bio for areas of expertise.
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Philip L. Franckel, Esq. is one of the HURT911® Dream Team™ Founding Partners at 1-800-HURT-911® New York; He has a 10 Avvo rating; Avvo Client’s Choice with all 5-star reviews; Avvo Top Contributor; and a former Member of the Board of Directors of the New York State Trial Lawyers Association.
Robert Plevy, Esq. is one of the HURT911® Dream Team™ Founding Partners at 1-800-HURT-911® New York. Rob began his legal career in 1993 as an Assistant Corporation Counsel defending The City of New York against personal injury lawsuits.
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