How Will My Personal Injury Case Be Resolved?
Once it is clear that a personal injury claim can be made, the next question a client asks is frequently, “When is my trial?” While it is true that some personal injury cases do go to trial, most actually don’t go to trial. There are four ways that cases can resolve. These include the following:
- Negotiated settlement between the attorneys;
- Negotiated settlement after mediation;
There are similarities and differences between these different case resolution types. In all cases, once your personal injury claim has been identified, your experienced personal injury lawyer will contact the party that is responsible for the injury. In a car accident case, for example, the driver and the driver’s insurance company will be notified. In a case involving a fall, the business will be contacted. The business or insurance company will refer the case to their lawyers, and a process called “discovery” will begin. Discovery is a means of each side determining what evidence exists regarding the injury. This will include video surveillance if that is available. Pictures of the accident scene and pictures of the injuries sustained will be exchanged. Medical records will be reviewed. Police reports will also be reviewed. Additionally, witness statements may be taken, either informally or in a deposition. You can also expect to be subject to a deposition.
At some point during this process, the lawyers will engage in settlement negotiations.
Negotiated Settlement Between the Attorneys
When there is a negotiated settlement between the attorneys, the attorneys will have had a discussion about the value of the case based on the extent of the injuries. A determination will be made concerning what would make the injured party whole. Some deference will also be given to the size of the insurance policy. A policyholder who maintains $50,000 worth of coverage will likely not be able to enter into a million dollar settlement. If a personal injury lawyer receives an offer to settle the case, they are obligated to present that offer to their injured client. The client then makes the final determination as to whether or not to accept the settlement.
Negotiated Settlement after Mediation
“Mediation” is a legal process that takes place outside of the court system. Mediators are specially trained to listen to the facts as presented by each party, and seek to offer case resolution. Mediators are selected by mutual agreement of both parties. Mediation is typically less formal than court proceedings.
As a starting point, the mediator will likely determine what facts the parties can agree upon. Mediators don’t judge. Instead, a mediator’s job is to attempt to find a solution that is acceptable to both sides. While this can include a monetary settlement, mediators can come up with other, creative solutions that may be unique to your circumstances. At a trial, the lawyers do most of the talking. In mediation, the mediator will want to talk to you directly. Mediation can save both time and money. Just as with a negotiated settlement between the attorneys, the injured party has the ultimate say in whether the case is settled. If mediation does not result in a satisfactory resolution, the case continues in the court system.
Arbitration is another method of resolving a case that takes place outside the court system. Just as with mediation, arbitrators are selected upon mutual agreement of the parties. If the parties cannot agree on an arbitrator, the court can appoint one. An arbitrator (or, in some cases, a panel of arbitrators) will conduct a hearing. Arbitrators typically are less formal than court proceedings. That said, you will still be testifying under oath. The arbitrator will hear all the evidence. In many cases there will be a court reporter taking down the testimony. The attorneys will rely on the transcripts of the testimony in making their arguments to the arbitrator. The arbitrator will hand down a written decision. Unlike mediation, the participants do not have the option of rejecting the arbitrator’s decision. However, arbitrator decisions can be appealed.
When cases cannot be resolved by other means, the case will be set for trial. As a preliminary matter, just because a case is set for trial on a given day does not mean that it will definitely go to trial on that day. This is for several reasons. First, it is not uncommon for more than one case be scheduled for trial on the same day. Judge availability and the size of the court calendar can impact whether a case is tried the first time it is set for trial. Second, it is not uncommon for the judge to speak with the lawyers prior to commencing a trial. This is a last attempt to settle the case.
If your case actually goes to trial, it will be tried either to a jury or directly to the judge. Just as you have no doubt seen on television, a trial involves an opening statement by both of the lawyers, followed by testimony from the parties with knowledge of the relevant facts of the case. Unlike during a mediation or arbitration, there are strict rules involving admissible evidence, appropriate forms of questioning, and the types of testimony that can be provided. Hearsay, for example, is generally not admissible.
Once all the evidence has been presented, the lawyers will give a closing argument. If the case is tried to a jury, the jury will retire to deliberate. They will then return their verdict. If the case is tried to the judge alone, the court may decide to take the case under advisement and issue a decision later. The court also has the option of ruling from the bench. The decision of the judge or jury is also appealable.
What To Do If You Have Been Injured
If you have been injured, the first step is to contact an attorney experienced in personal injury law. The lawyers at Bader Law Firm, LLC can assist you in your case. Contact them today.