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Information About Your Case
This information has been prepared for our potential clients in an effort to give you a better understanding of what we do and how we do it. We want to do the very best job that we can in seeking justice for you and the information contained here will help you assist us better with your case.
Please read this carefully. One advantage of presenting this material in this form is that you can absorb it at your own pace and in a logical order. Another advantage is that it is reasonably permanent. Bookmark this website so that you may refer to it in the future.
As always, if you have any questions call us or email us
- Questions and Answers About Your Tort Claim
- The Role of Insurance
- The Elements of Damage
- How We Handle Your Case
- PROVIDE US WITH REGULAR UPDATES
- Your Deposition
Questions And Answers About Your Tort Claim
What is a tort?
A tort is a civil, (as opposed to criminal), wrong that somehow damages another person. Civil matters involving contracts generally do not involve torts but a wide range of negligent conduct can result in a tort. A tort generally results when someone does not comply with a duty of care that they owe to someone else. Someone who commits a tort is called a tortfeasor. Some examples of torts are given in chapter 2 which may better illustrate this concept.
Do I need a lawyer?
Not necessarily. You can settle your claim without a lawyer if you choose to. The advantages of retaining an attorney are basically threefold. First, an attorney has experience in such matters and thus knows the things to do and not to do. Secondly, an attorney will usually obtain a better recovery for you. Lastly, an attorney might be necessary anyway if you must ultimately bring a lawsuit and the lawyer can do a better job if he is involved from the beginning.
Will I have to go to court?
Again, not necessarily. Sometimes a settlement can be reached with the party at fault or his insurance company. Unfortunately, it is often necessary to file a lawsuit in order to obtain a reasonable recovery. (This is explained in greater detail in Chapter 3). The important thing is that you should be prepared to go to court if necessary, even though it is a remedy of last resort. Remember that a trial by a jury of your peers is an American birth right, it is nothing to fear or to be ashamed of. Also, realize that most lawsuits which are filed do not go to trial, they are settled beforehand.
How much time do I have to sue?
This varies depending upon the basis of your claim and the facts surrounding it. Generally speaking, you should assume that you have one year form the date of the incident involved. The sooner you contact your attorney, the better his handling of your case will be. Sometimes you can wait longer than one year, but you should get a legal opinion on this from an attorney.
How much is my case worth?
This is a very important question but it is also difficult to answer. Many factors contribute to the value or lack thereof of a lawsuit. Usually an attorney can give you an idea of the things you can recover in a case although stating an actual dollar amount is not as easy. The things you can recover for are discussed in Chapter 4.
What will my lawsuit cost?
Attorneys often charge clients a set amount for each hour of work they perform or each service they complete. Many attorneys, including ourselves, handle tort claims differently because most victims would not be able to afford normal fees. We take a percentage of the economic benefit we obtain for you. This is called contingency fee.
Additional costs will arise such as filing fees, traveling expenses, feels for expert witnesses, etc. You will be responsible for these costs regardless of the outcome of your case. We will work with you to you pay these expenses in conjunction with your financial situation.
How long will it take to recover?
This is difficult to answer because so much depends on the attitude of the other side. We will do what we can to speed your case to completion but you should realize that there are inherent delays in legal proceedings and that we must be totally prepared before going to trial. Luckily, the courts in Kentucky are among the most efficient in the country. Also realize that patience may be beneficial to you by resolving questions about the extent of your damages.
How will you handle my case?
We will explain the steps in your case in detail in Chapter 5. In a general sense though we strive to handle all of our cases with several goals in mind including competence, confidentiality and completeness.
What are my responsibilities:
Again we have an entire chapter, (6), on this question. Basically, your job is to provide us the information we request, to keep an open mind about your case, and to work with us for a good result.
THE ROLE OF INSURANCE
The entire legal system of courts and lawyers and legislatures was created and designed with several goals in mind such as safe guarding freedom and preventing problems before they arise. Another of its most important functions is the reasoned resolution of contested disputes. One of our greatest traits as a nation is that no one need resort to violence to obtain justice. Nor does anyone, regardless of status, have to accept injury without recourse. This is not to say that the system is perfect or that everyone goes away happy. Indeed, almost everyone involved in litigation ends up with less then they might feel is 100% satisfaction. That is because compromise is the fuel of the American legal system. Everybody gives a little so that the system as a whole functions more smoothly and no one suffers disproportionately.
There is a comparable mechanism at work in the financial aspects of tort claims. This is the concept of insurance. Most torts involve unintentional conduct that results from a lack of care. Arguable, if everyone was simply careful enough in everything they did, we could avoid torts altogether. But if a few thousand years of history have taught us anything it is that there will always be mistakes made when people are involved. Even very skilled and cautious persons make errors that cause others harm.
The legal system can protect the victim financially by providing him or her with a means of recovery, but what of the tortfeasor. How can the dedicated surgeon or safe driver guard against financial ruin from one unexpected slip? The answer, of course, is insurance. The insurance business began in Old England when businessmen wanted to cover the cargo of ships for loss at sea. the insurance industry has grown into a multibillion dollar operation which provides protection on everything from autos to zoos. Now you can even buy insurance to cover your insurance!
Insurance works somewhat like the legal system in that everybody gives a little so that the risk to any one person is bearable. Your premium is pooled with others to provide a source for compensating people who might otherwise face catastrophic debts.
Insurance is a business however and there are several business aspects of the insurance industry that may affect your tort claim. First, realize the insurance companies are in business for profit or to control losses for their members. They try to keep claims and payouts to a minimum. For this reason you should be careful when talking to an insurance company representative, (usually called an adjuster), about your case. Most adjusters are honest and hard working but to a great extent they have goals that conflict with yours. If you have given an adjuster a written statement, be sure to obtain a copy of it. Once you have an attorney, insist that the adjuster communicate through your attorney at all times. Finally, be very cautious before signing any releases or accepting any payments form the adjuster.
Another fact about insurance that you should know is that it deals in big numbers. Auto insurance is mandatory in Kentucky and many other states now and many people carry homeowner’s policies. Likewise almost all doctors, businesses, hospitals and even governments carry insurance to protect them and their clients, customers, etc. With this many policies in force insurance companies can predict, on average, how best to handle a claim. They have found that it is usually cheaper to fight a claim then to settle it at an early stage. For this reason, most policies provide that the insurance company will provide a legal defense and retain control over settlement. Thus the tort victim must deal not with the tortfeasor but with his or her insurance company and its lawyers. You must realize that this situation makes the resolution of your claim a business operation for the other side. We have dealt with these types of people before and often have experience with the very company or attorneys who will defend your claim. We will use this experience to assist and advise you as the case progresses.
A final aspect of the insurance business may surprise you. Most companies pay out more in claims then they take in premiums. How do they stay in business give this situation? The answer is interest. By getting premiums in early and paying claims out late and investing the money in between, companies turn a profit. This process helps everyone by keeping premiums lower but it can hinder a tort claimant. If you have a significant claim then the insurance company can make money by stalling settlement. We hope that knowledge of this can make future delay and struggle more understandable if not more bearable.
Besides personal injury, there are numerous other types of torts which we can handle in our office. Among these are libel or slander cases and claims of discrimination. A rapidly changing area of law are cases of wrongful discharge form employment. All of these torts require a thorough review of the facts by an attorney before a decision about liability can be made. Some torts strictly concern property damage. They still represent a valid claim though.
We have probably touched on an aspect of your case at lease once and maybe several times in this review, (for example a personal injury claim from an auto accident caused by a defective tire rim). We invite you to read the remaining chapters and then contact us should you need further information.
THE ELEMENTS OF DAMAGE
All too frequently clients come to us asking only the basic questions can I sue or how do I sue. It is important for you to also understand the reasons for the equally important question, should I sue.
First, realize the limitations of the tort system. Its basic method of compensation is monetary. Occasionally there are other forms of relief available in certain cases but money damages are the normal recovery. Punishment or public ridicule are not goals of the tort system although punitive damages can be recovered in cases of gross misconduct. If your goal is to “get even” with someone or to “teach them a lesson” then you are apt to be disappointed. While the law’s stated goal is to make the victim whole this is clearly impossible in the case of severe medical injuries or death. Nonetheless, money damages can make life easier for the crippled victim or the survivors of a person wrongfully killed. Another purpose of the tort system is to reduce future injuries by providing an incentive to deter improper conduct.
Second, realize that it costs money to pursue a tort claim. Some of these costs are monetary. These include deposition fees, witness fees, transportation expenses, etc. These will be your obligation win, lose or draw. Other costs are mental and emotional. A lawsuit is time consuming and involves a great deal of effort. It can lead to hard feelings and self doubt. We can help you evaluate the financial costs of your case but you must help us assess its emotional cost and appropriateness based on your objectives.
Once you know the approximate cost of the case you can compare that to the potential recovery in terms of damages, vindication or deterrence. This “value” of a case is based on the damages you can recover and the odds of success. The likelihood of success is an educated guess at best and is best left to the professional judgment of your attorney based on the particular facts of your case. The question of damages is somewhat more objective and easier to answer. Only when all of these complex issues have been evaluated as fully as possible should the decision to sue be made. Until then keep an open mind and try to be honest with your attorney, he wants to help you make the right decision.
At this time we would like to discuss the various damages you may suffer so that you will be more informed on this matter and thus able to assist us in obtaining a full recovery for you.
One of the most common areas of damage is medical expense. This would include doctor bills and hospital charges. Some others to keep track of are physical therapy or nursing expenditures and the cost of any medications you may be prescribed. You might also incur the cost of braces, wheelchairs, special beds or other equipment as a result of your injury. Finally, you are entitled to the transportation cost for obtaining any treatment. Sometimes your damages may include damage to property. A common example is the cost of auto repairs after an accident. You can also recover the cost of alternate transportation until replacement or repair. Other examples of property damage are the cost of replacing damaged clothing, repairs to your home or lost jewelry.
A major incidental expense to most personal injuries is lost income or wages. These sums are recoverable and are usually proven by documents from the employer or by tax returns. Other incidental damages include the cost of necessary housekeeping or babysitting services and any required alterations to the home, (such as wheelchair modifications).
Arguably, the greatest loss in most injuries is mental rather than financial. The pain and suffering you endure can be compensated despite their subjective nature. The jury will decide what your recovery will be in this area. Likewise, you can recover for such things as loss of self esteem or a tarnished reputation. Your spouse may have a separate cause of action based on the legal concept of lost consortium. This involves the diminution or loss of your services, companionship and love.
Finally, you should also be aware of the potential future costs of your injury. You may suffer future pain, lost wages or medical expense. These should be compensated for in your settlement or verdict.
We will work together with you to obtain the fullest possible recovery for you. Do keep in mind though that we must sometimes make trade offs in this area. For instance, we might choose to ignore some minor elements of damage as not to distract the jury from your major elements.
HOW WE HANDLE YOUR CASE
Many people find the legal system confusing and intimidating. This is unfortunate because here is very little about it which is mystical. It is really rather orderly and the principle skill it demands of litigants and attorneys is a capacity for hard work. Most tort claims boil down to the presentation of disputed facts to an impartial jury for a decision. In an effort to demystify the process we would like to outline how we handle your case.
The first thing we normally do is sit down with you to get an overview of the facts. After getting all the facts from you, we open a file in your case. We then gather all the evidence and facts that we can. This helps us in knowing the full extent of the responsibility on the part of the other side. Information about the extent of your injuries and losses is needed so that we can determine the value of your claim. Among the items we acquire are complete medical records and reports from your doctors. Since this can be costly we will often ask for some payment, in advance, on these expenses.
Naturally, there is no attempt at an evaluation until we have all of the facts, including the extent of your recovery and any continuing problems that might be present. Based on all the facts available we will then make a decision on whether we will handle your case. If we decline, you should feel free to consult another attorney for another opinion. Sometimes we may even ask you to return to our office for a detailed discussion about the case.
Once we accept the case an attempt is made to negotiate a settlement with the other side or their insurance companies. We try to do this as soon as we can. Unfortunately, in many cases the insurance company is not interested in settling the case or will not pay a reasonable amount. When that happens, a lawsuit on your behalf becomes necessary.
Your lawsuit is begun with the preparation of a Complaint which is a legal document which describes what happened to you and the injuries and losses which resulted. It must be carefully prepared by our offices as it is a formal claim against the tortfeasors as well as notice to the court that such a claim has been made. Generally, a lawsuit is filed in the county where the incident occurred. A copy is then served upon each of the defendants in this case who then have twenty (20) days to file an Answer, which usually denies our claim. The Answer may contend that the damages you suffered were your own fault or list other defenses. The other side may even file a counter claim seeking damages from you for their injuries.
The time it takes for your case to come to trial depends on the number of cases ahead of yours and the speed with which we can conclude discovery of the facts. Consequently, the delay is hard to predict.
During the time that your case is being prepared for trial, there will be many developments and things happening in your case. Investigation will be continuing and we will be gathering information about the case and concerning your injuries and losses. During this time, your deposition will be taken and we will have the right to take the deposition of the other side or their witnesses concerning the facts of the accident.
One of the most difficult aspects of a case like yours is the need to have patience. The conclusion of an important lawsuit takes time. Be assured that the period of time during which we are awaiting a trial date will be productively used to prepare your case.
It is estimated that over 90% of all claims that are made are settled without going to trial. We hope that your case falls into this category, but it is difficult to predict. We always hope that a fair settlement can be made at the earliest possible time. We will get approval on any offer of settlement which we present to the other side. Likewise, any offer they make will be conveyed to you. You have the final say on all matters of settlement. Nonetheless, we hope that you will accept our advice openly and give it due consideration.
As your attorneys, we will pursue your case as vigorously as possible and hopefully obtain the finest results possible for you. As attorneys in this field and as officers of the court we are deeply aware of our professional obligation to you. From the moment we were retained by you, numerous steps were taken and will continue to be taken in your case which are geared towards bringing your claim to a favorable conclusion. Many of these are technical in nature but others are not. It is not always possible for us to take the time necessary to advise you about all of the minor details, but rest assured that we will let you know of any and all important developments or significant progress in your case. If you do not hear from us for a period of time, it does not mean that the case is not moving along in normal fashion.
If the case cannot be satisfactorily settled, we must prepare for trial. There are many things that will be done by our office getting evidence and witnesses ready, as well as preparing you for your testimony in court. At that time we will review the facts of the accident as well as the details of your injury and treatment. We will explain the details and strategy of the trial so that you will have a full understanding of what takes place, our chances of success, and your role. This naturally is a long time away and need not concern you this far in advance. You will be thoroughly prepared for your testimony, your appearance and manner in the courtroom, and thoroughly briefed so that you have a better understanding of the technical aspects of the trial and your case.
PROVIDE US WITH REGULAR UPDATES
While it is true that we have a great deal of hard work to do as your attorneys, you too have a crucial role to play on the “team”. We would now like to give you some instructions so that you can reach your full potential as a “player” on your tort team.
First and foremost, be honest and thorough, nothing is as devastating legally as an apparent misstatement or forgotten fact. Often very damaging or destructive matters can be handled if we know about them in advance but even a minor error or omission can be deadly if it comes as a surprise. Remember, we will honor all information you give us in the utmost confidence.
In order to assist you in giving us a full idea of the facts we may give you some questions sheets to answer. This information will help us to investigate the case and also to answer certain legal documents called Interrogatories. The questions may seem long or irrelevant but please give them your best effort.
If you have suffered an injury we would like for you to prepare a document for us entitled, “My Day”. It should detail a normal day, from the time you rise until the time you go to sleep, and explain in detail how this occurrence has changed your life. By your life we mean your working life, your playtime, your hobbies, your life as a husband or wife, mother or father, etc. This includes your disposition, personality, nervousness, etc.
We want a description of your pain, both at the time of the tort and at all times thereafter. We want to know whether or not it is a shooting pain, throbbing pain, etc. We want your words and not anyone else’s. It may be helpful to prepare a “My Day” diary regarding how this has affected your life.
You should also begin compiling a list of witnesses who can verify your “My Day” story. Talk to friends who know how you have changed.
You know your own life better than we do. Use your imagination and go into all aspects of your life. Explain in the greatest possible detail. Paint a picture with words.
In addition to the question sheets and “My Day” document we need you to compile some other items. Please keep accurate records and documentation of lost income, medical expenses, and other losses or repairs. Get receipts!
Some things you will be required to do under the law. For instance, you will probably have to give sworn testimony about this at a “deposition”. We discuss this in detail in the next chapter. You may also be required to be examined by a physician of the other side’s choosing.
Here are some further do’s and don’t’s for your to follow in your case:
- DO See your doctors as often as necessary. Don’t minimize your ailments, they need to know how to treat you.
- DON’T Repair or discard vehicles or equipment that may be involved in the case until we have a chance to examine them.
- DO Immediately furnish us with the names, addresses and telephone numbers of any and all witnesses you may learn of.
- DON’T Talk to anyone about your case. Fell free to tell them that we have asked you to remain silent on the mater during the course of the case.
- DO Keep us posted regarding any legal matters related to the case such as traffic citations, administrative hearings, etc.
- DON’T Sign anything regarding the case without consulting us.
- DO Tell us about your progress medically and otherwise. We can do a better job when we are fully informed.
As a last consideration, realize that every case is unique in its facts and, therefore, in how it must be handled. There may be some special instructions for you to follow in a particular case. If so, please carry them out as soon as possible.
The most involved you will be in your case prior to trial is at your deposition. Each side in a lawsuit has a right to take the “deposition” of the other party or their witnesses. This means that the lawyer for the other side can ask you questions under oath to get your version of the facts and this is the only chance they have to ask you these things directly before trial. Everything that is said is taken down, usually by a court reporter. As your lawyers, we will be present to protect your rights. When properly given, your deposition can assist us considerably in handling your case successfully. Your attitude, truthfulness and appearance are all very important. The following advice will hep you to understand how to be an effective witness.
There are two very important rules for you to keep in mind before and during your deposition:
(1) ANSWER EXACTLY WHAT IS ASKED AND NOTHING MORE. Don’t volunteer information! Bear in mind that the deposition is being taken by the other side in order to fish for information which will be harmful to you. Therefore, the less information they get, the less harm they can do to the case. Listen carefully to each question. Take your time. The deposition transcript usually does not denote long pauses, only the question and your answer.
Often times, answering more than is asked can make the deposition take longer. Do not assume you know what the other attorney is trying to find out. By doing this, you will volunteer information that the attorney was possibly never going to ask you about. This will open up a new line of questions that was never intended.
On the other hand, the other attorney might try to get you to agree with statements, and this might seem like it will make your deposition go faster. Again, take your time. Listen to the statement. If it is correct, then you can say you agree. If it is not correct in any way, do not hesitate to disagree.
(2) ANSWER ONLY WHAT YOU KNOW. Do not guess. There or no right or wrong answers and you should not think of a deposition as a quiz on your case. If you do not know or do not remember, say you don’t know or don’t remember. It is always better to say you don’t know than to guess and be wrong and later have to explain why you said that in the first place.
An attorney may try to ask you again in a different way if you have already answered that you do not know. Be careful and take your time. If the attorney is simply re-stating the question in a different way, then your answer should be the same, that you do not know. Answering the same way twice, will allow your attorney to make an objection and ask the opposing attorney to move on. Don’t guess or say “I think” or “maybe” as those would be guesses.
Those are the most important rules. Please review those again prior to your deposition. However, read on for more information on how you can help your case in your deposition.
Your deposition will probably be the first time that the opposing lawyer gets to see you. It is important to make a good impression. You should dress as if you were going to court, to appear before a judge and jury. Be clean, wear neat and conservative clothing, and treat everyone politely and with respect. Be serious and avoid smart aleck answers. Do not try to outsmart the other lawyer (or your own).
Come prepared to exhibit any and all injuries which you have suffered. Have with you all the facts and figures with respect to your time lost from work, amount of wages lost, doctor bills, etc. You should review any notes, answers to interrogatories and any instructional materials that we have given you.
The following items are some general do’s and don’t’s for you to consider concerning your deposition:
- Be humble respectful just tell the truth “yes sir” and “no ma’am”.
- Never argue or lose your temper; leave your temper at home. However, do not be afraid to disagree politely.
- Speak slowly and clearly don’t shake your head yes or no the court reporter must be able to understand.
- If you don’t understand the question, ask that it be explained.
- Wait until the question is asked answer it and stop. If you can answer “yes” or “no” do so and stop. Explain your answer if necessary but don’t make speeches.
- Elaborate on any answers about your damages or injuries where helpful but do not magnify your injuries or losses. Start at the top of your head and go to your toes so you are thorough.
- Be conservative with respect to your injuries adopt an unexaggerated attitude toward them.
- Avoid estimates unless you have knowledge on same be reasonable.
- If you don’t know, admit it. Don’t guess, it’s important to be straight forward.
- Don’t try to memorize your story, justice only requires you to tell your version to the best of your ability.
- Take your time give the questions and answers as much thought as necessary.
- The other lawyer may ask a leading question, one that suggests an answer, (such as, “isn’t it true that you were going 50 m.p.h.?”), do not be misled, answer “no” if he is wrong.
- The other lawyer may refer to what appears to be some papers and seem to have information from which he or she is questioning you. Don’t let this mislead you and ask to look at the document first. Don’t agree unless it is the truth as you know it. It is perfectly all right to say you don’t know even if the document looks like it contradicts you. Never give testimony about anything if you have no independent or personal knowledge.
Remember that we will be present with you at all times throughout the deposition and if an improper question is asked we will object to it. Then you may not have to answer. Otherwise, answer each question. Furthermore, we will have the opportunity to ask you questions afterwards to clear up uncertainties and confusion.
To summarize, your job during the deposition is to answer the questions fairly and honestly. The lawyer is the one who really must do the work you need only answer each question, and in as few words as possible. Your manner and appearance will be a big factor in the success of your case.
We hope that this information has answered many of the questions that you have about your case. From time to time, feel free to refer to it when a point comes up, but also don’t hesitate to call us if you have additional questions. Sometimes we are not in the office but in court, taking depositions, or elsewhere. If this is the case, please leave a message or discuss the problem with our secretaries who are highly trained and can probably answer many of your questions. If they cannot, please leave a message and we will get back to yo as soon as possible.
KEEP US ADVISED. It is important that you keep us advised of any changes in your address, telephone number, or employment, so that we always know where to reach you. Also, keep us informed about any new information about your case a new doctor, a change in your condition, any other accidents, or any developments. It is essential that we know of any and all facts which might affect your case.
There is one final point which we should mention. A lawsuit is a battle, but is one in which there is no such thing as an orderly retreat. We are going into this case to win, to secure justice for you. But you must fight side by side with us. Don’t put handcuffs on us. There is some risk in all litigation but we want you to promise to continue the battle with us if such is our considered judgment. Remember also that the battle may be protracted. If we win, the other side may appeal. Please don’t quit on us.
We will be working closely together until the time that your case is completed. Your cooperation is deeply appreciated and hopefully will result in bringing this case to an early and satisfactory conclusion.
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