A
formal lawsuit is started wherein we prepare
a "complaint" which generally states the legal
grounds for your case. This "complaint" is filed
with the court and the court issues a "summons."
The "summons", along with a copy of the "complaint",
is served on the responsible parties. The injured
party in the lawsuit is called the "plaintiff",
and the parties responsible for the plaintiff's
injuries are called the "defendants."
When the defendant in your case is served,
he will turn the suit papers over to his insurance
company. The insurance company, in turn, retains
defense attorneys to represent the defendant.
The defendant's attorney must file a paper
called
an "Answer". The answer states the general
reasons why the defendant is contesting the
suit.
Sometimes, the defense attorney will file motions
before filing an answer, but most often an answer
is received within 60 days of the time when the
complaint is served.
Once all of the defendants have answered the
lawsuits, we file a memorandum to the court
which states
that all of the defendants included in the
complaint have been served and their attorneys
have filed
answers. It is only after this memorandum is
filed that the court places us on the active
case list.
In effect, we start "waiting in line" only after
we have received answers to the complaint from
all of the defendants and we have filed the memorandum.
The memorandum is called an "At Issue Memorandum",
which means that each of the parties has stated
its position concerning he issues in the case
by formal complaint and answer.
Once the suit papers have been filed, served
and exchanged as stated above, the lawsuit
will develop
through various steps which attorneys call "discovery".
Discovery in the litigation involves the filing
of written questions called "interrogatories",
"request to produce documents" which may be important,
and the scheduling of oral depositions.
Ordinarily, the written "interrogatory" questions
are exchanged before depositions are taken. You
will in all probability receive a long list of
these detailed "interrogatories" from the defendant
which you must respond to. We will review all
of your answers and place them in appropriate
legal form. Likewise, the defendant must answer
written questions which we will submit to it.
The law requires that those written interrogatory
questions be responded to within 30 days. It is
important when the interrogatory questions are
sent to you, every effort must be made to respond
in time.
The "interrogatories" will ask you questions
about your background, education, past earning
capacity
and information concerning any other accidents
or injuries sustained by you before or after
the
one in question. It is particularly important
to disclose all such information. The insurance
companies subscribe to a nationwide index service
which lists all claims that have been filed
over
the years in the United States. If a plaintiff
does not reveal a previous accident claim,
the
results is very harmful because the defense
will point to the failure of admitting past
accidents
as being an impeachment of credibility.
Your Deposition
A "deposition" is a question-and-answer session
where the person being questioned is called
the
deponent. In all likelihood, the defendant
will wish to take your deposition in this case.
The deposition is the only time during the processing
of the case where the other side will have the
opportunity to question you directly.
Many times your deposition is an extremely
important part of your case. You will be advised
of the
date set for your deposition in advance, and
we will prepare you before the deposition starts,
and will be present with you while the defense
attorney is questioning you. "You may undergo
a defense medical examination. Talk only about
your pain and discomfort resulting from the accident."
"Your medical history is available to the defense.
Failing to provide this information harms your
credibility."
Usually, the deposition is held in an attorney's
office. A court reporter will be present and take
down all of the things that are said by anyone
who is in the room. Each of the questions and
each of the answers will be recorded by the court
reporter, and after the deposition has been completed,
the court reporter will transcribe his notes into
a booklet, writing out all of the questions and
the answers.
You will receive further communication from us
with regard to your deposition. At this point,
however, we only wish to advise you that your
deposition will probably be taken and that you
need not be nervous about this event. You will
be appropriately prepared and will be properly
represented during this procedure.
Your Medical Examination
The defendant in a lawsuit has a right to hire
a doctor to examine the plaintiff and render a
report to the insurance company attorney indicating
the doctor's opinion. It is important for you
to understand that the doctor is hired by the
defendant's insurance company to minimize the
plaintiff's damage.
Since this doctor is paid by the insurance company
to examine you and may be paid by the insurance
company to testify at trial, the specifics concerning
his examination become an essential element of
your case.
Preparation and Attitude: We will have
a representative of our office present with
you
during the medical examination. It is important
that we be prompt for the appointment even
though
we may have to wait a considerable time to
see the doctor. If a plaintiff is late to medical
appointments, sometimes the doctor will use
plaintiff's
lateness to take a "pot shot" at the plaintiff
at some point in time in his report or in his
testimony. It is also important that you dress
neatly and conservatively for the appointment
as many defense doctors are favorably impressed
by conservatively dressed people.
Talking to the Doctor: You should refrain
from talking about facts which led up to the accident
itself. The doctor is entitled to know those facts
about the accident that gives him insight into
the magnitude of the physical trauma involved.
Whether someone was at fault or not for the accident
has nothing to do with the doctor's examination.
Therefore, any discussion about fault for the
accident should be eliminated in talking with
the doctor. His job is merely to evaluate your
injury and not to decide fault. Also, you should
not be bashful to indicate every complaint that
you have as a result of the accident. Don't be
afraid to express your complaints. If you do not
tell the doctor what is wrong with you, he will
simply assume that there is nothing wrong with
you and record accordingly.
Tell the doctor how the pain and discomfort affects
your daily life. Explain to him how your complaints
affect your ability to do your daily work, whether
it be at home or professionally. All of these
aspects become important factors with which the
doctor has to content in writing his report.
Other General Hints: Always be truthful
with the doctor. Do not hide information about
previous accidents or injuries. Providing such
information does not hurt your case in any way.
Failing to provide the information harms your
credibility.
Even if you find the doctor disagreeable, try
to maintain your composure and be cooperative
with him in his examination. One of the first
questions that we often ask a doctor at trial
is "Was the plaintiff cooperative with you during
your examination?" and "Isn't it important for
you in making your evaluation to have a cooperative
patient?" If he answers "yes", to both of those
questions, we have made significant progress.
Things To Be Avoided: The insurance
company subscribes to an injury index system
on a nationwide
basis which shows the names of all people who
have ever had claims for injuries. If you have
had a previous claim, your name will be there
and they will have this information. The only
time that previous injuries can truly hurt
your
case is if you fail to disclose them when asked.
All you do by failing to disclose such information
is provide the defense with an opportunity
to
attack your credibility. Also, the defense
attorney will see to it that all of your medical
records
are copied. They have a right to all of your
medical records when injury is an issue in
the lawsuit.
Anything that you have told the doctor in the
past that has been recorded in those records
is
something that they will know about. For that
reason, the easiest thing to do is tell the
truth,
be frank, candid and honest, and they will
not be able to "trip you up."
If you are concerned about any element of your
past medical history, or if you are concerned
about anything that might be involved in past
medical records might be particularly embarrassing
to you, please bring it to our attention. You
may be able to prevent such facts from coming
in front of a jury at trial, but only if you have
been totally honest about disclosing them and
have provided us with advance warning.
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