As a litigation attorney, I've heard the phrase, “but I'm not the kind of person to sue” more times that I can count. I get it – lawsuits are generally negatively portrayed in the media, and it makes sense that there might be a hesitation. Without getting into my feelings about the subject (that lawsuits help society, in a significant way), let's take a look at what actually happens when you hire a lawyer to “sue” someone following an accident.
Let's say you and your family were hit by another car whose driver was looking at his phone. Unfortunately, you, the driver of the vehicle, suffer a traumatic injury to your leg that will require multiple surgeries and a lengthy period of time out of work. You eventually decide to reach out to a lawyer. What happens now?
1. Deciding to “sue” doesn't actually mean that you have to file papers, appear in court, or make your case to a jury.
Clients often come to us with very little experience in the civil litigation system, and because of that their perspective relates to what they've seen on television, the internet, Facebook, etc. Understandably, then, they assume that by contacting a lawyer they will be sitting in a courtroom testifying a week later.
First, nothing moves that quickly, as you'll see below at #2. Second, however, is the fact that there are options other than filing papers to formally commence a lawsuit, which might be appropriate in some cases. These including negotiating directly with the insurance company for the wrongdoer, to try and obtain a settlement of the claim in advance of filing suit. This is useful in some cases but depends in great part upon the reasonableness of the insurance company as well as the seriousness of the injury. If the severely broken leg has not fully healed, for example, it may not make sense to negotiate a settlement without knowing what the condition will look like in 6,12,18 months.
If a settlement cannot be achieved, it is always important to keep in mind that a legal claim can, generally, be resolved at any point, even after formal papers have been filed to start a lawsuit. This means that the case can, potentially, be settled before you have to actually appear in court.
Finally, reality is that even when a lawsuit is filed, in the vast majority of cases (greater than 90%), a trial does not take place. In most of these the case is resolved between the parties. There are a number of reasons why this is the case, not the least of which is that a settlement takes the risk of a jury decision out of the equation for both sides.
In the end, it's important to remember that there are a number of possible scenarios when you decide to pursue a legal claim following an accident. The process is neither as quick or as one-dimensional as you may see on tv.
2. You often wait, for a long time, to see a result.
If you watch a legal show on television, you will often see a client walk into a lawyer's office for the first time, and within a week be sitting in a courtroom in front of a jury. This is somewhat understandable, because a television show has an arc that it has to follow and because, frankly, what happens in the middle would not likely make for exciting television.
The reality is that the legal system is a slow-moving machine. Legal proceedings take time – often a long time – to resolve. This is, unfortunately, a product of that system, and in most cases is unavoidable.
In situations where the injured person decides to pursue resolving a claim with the insurance company, prior to filing a lawsuit, resolution can take anywhere from a few months to more than a year. This is in part related to the fact that if you are still receiving treatment for your injuries, it may not make sense to settle your claim unless/until you fully know the scope of damage. Remember, if/when you accept money for the injury it is a one-time shot, and you will sign a release, which means that you cannot, later, come back for more.
If the case does not settle, and a lawsuit is filed, you are now “in the system,” and to some degree are subject to the slow timing of the system itself. Lawsuits tend to resolve somewhere between 9-18months after they are filed, but this is not always the case and they can often last much longer. There are many factors that can cause delays (fighting between the lawyers over disclosure of evidence, courts taking a long time to make decisions, busy parties), but the reality is that most lawsuits end up taking longer than expected, so it's good to plan in advance and let the process play out.
3. You are asked about things that have nothing to do with your case or your injury.
Remember this – once you bring a legal action, your life, generally, becomes an open book. We say this not to frighten you, but to make you aware of the reality of the system.
If you file a lawsuit because of an injury or because you were sexually harassed at work, you will be seeking damages – under the civil justice system in New York, this is how you recover. When you ask for money for damages, the other side is permitted to ask you about those damages. This means that if you are claiming, for example, a broken leg, they are generally permitted to ask you to look at your medical records dating back several years to see if you've ever had problems with that leg in the past.
The other side (primarily the insurance company) does this because they want to try and diminish your claim. They want to try to show that you weren't really as hurt because of this as you say you are. And they try to do this by showing that you've had problems in the past.
Well, guess what, most of us have. But that doesn't change the fact that they like to go fishing, and with very little restriction, they can.
Now, this does not mean that they will ask for and be entitled to every bit of your personal history. We often fight (successfully) to keep certain information about clients private. Most of the time this is not because the information would have any impact on their case, but because it is very personal to them and they would prefer that it be kept private.
That being said, it's important to remember that when you enter the legal system you are somewhat outside of your own control, which of course makes working with the right lawyer all the more critical.
4. You feel insulted/frustrated at least, but likely more than, once.
These days jury trials are not the norm, they are the exception. The reality is that most cases, even some of the difficult ones, get resolved before trial, and more and more that resolution happens through the process of mediation.
Mediation is an informal process where the parties to a lawsuit sit down with a neutral third party (usually a retired judge or lawyer) and try to settle a case. We mediate cases all the time, often with success.
One thing that happens at just about every mediation, however, is that when the defense makes their initial offer to settle, the client is insulted.
Typically, this insult comes from the low initial offer. Sometimes it comes from things that the other attorney says about the case, diminishing the significance of what is, to our client, very important. We understand, this can be offensive.
However, despite the fact that you are frustrated/insulted/upset, our job is to keep things on track, and to recognize that this is the system. Once you understand how that system works, you can continue to move forward, despite the frustration, and get to a good result. We've lost count of the number of times that a client was extremely insulted, wanted to walk out of a negotiation, only to end the day with a very good settlement and a happy, validated client.
It's critical to understand that this is a process; albeit often a frustrating one.
5. You (hopefully) obtain a recovery that will help your family get through this difficult time and move forward, in the end.
While our goal in each case, for each client, is different, the overall goal is not. We want to achieve a recovery, or result, for our client that somehow makes their life a little bit easier; a little bit better.
Our clients have been through extremely difficult, often devastating, life situations. Nothing can change what has happened or rewind the clock. And the process to get there can be intensely frustrating, but in the end, whether through settlement or a jury verdict at trial, the goal is to get you the client to the point where you walk away feeling as though you can move forward.
Many times, this means that the other side has acknowledged (typically through a settlement) that they made a mistake. They will (almost) never actually admit this – it's simply the nature of the system not to encourage this – but by agreeing to pay you a significant amount of money they are acknowledging their fault.
And make no mistake about it; big businesses, insurance companies, hospitals – they don't like to pay a lot of money to settle claims. And when they do, they often change policies, and cultures, to avoid having to do it again.
That's one of the reasons we do what we do – to try and use the legal system to facilitate change and in some small way make things better. And when you bring a lawsuit; whether against a big company that has permitted sexual harassment to go on for too long, or against a hospital that failed to pay attention and overdosed a medication, or against a driver who was texting while driving and caused an accident; you are doing your part to force that wrongdoer to make changes in some way to prevent this from happening again in the future.
And this, in the end, is what helps clients leave the process feeling, if not satisfied, that they've made a difference.
If you have questions about a legal situation, please contact us today.