PROCESS OF A LAWSUIT
Proceeding with a Claim
For many injury victims, pursuing a personal injury claim is unfamiliar and perhaps intimidating.
Learning about the mechanics of the litigation process will prepare you for the work ahead. The more you know about the process, the better you will be able to make appropriate decisions in your best interest.
If The Law Firm of William Babich, LLC. agrees to represent you, the firm will :
- Gather your medical records and follow your medical care;
- Obtain and secure the evidence and testimony necessary to prove your case;
- Evaluate the liability and the damages and obtain your authority and consent to settle after you reach “maximum medical improvement”;
- Prepare an extensive and detailed demand letter, attempting to settle before filing suit in some instances;
- File the required notices of claim against a federal, state or public defendant; or
- Prepare and file with a Court a pleading entitled "Complaint" and then have it, served along with a duly issued summons, on the defendant, if settlement can not be reached without filing suit.
Discovery is the legal term used to describe the investigative activities in a case after it is filed and before trial. Historically, neither side found out what the other side's evidence was prior to trial. Ambush, surprise, and concealment were the order of the day.
However, as the courts became more sophisticated and more crowded, it became clear that if both sides knew each other's case before the trial, the trial would be more fair, the parties would have a better idea as to what they were facing, and more cases would settle before trail. Now, as a matter of rule, each side must disclose to the other its evidence, witnesses and exhibits upon a proper request.
As a plaintiff in a personal injury case, you will be asked and are obliged by the law to answer particular questions routinely posed by a defendant. The information sought must be reasonably calculated to lead to relevant evidence. This broad standard allows the seemingly most trivial information to be "discoverable" including detailed personal and medical histories, copies of many personal documents and answers to questions concerning your case, evidence and exhibits. The Law Firm of William Babich, LLC. and its office staff will help you in responding to discovery. All discovery is given under oath and must be complete, truthful and consistent.
The firm will conduct discovery on your behalf in order to assist it in the preparation of your case. Generally, because a defendant's medical condition is not an issue (it usually is for the plaintiff in a personal injury case), the defendant is not required to answer questions which touch upon such personal matters as the defendant may inquire of the plaintiff. The same is true as to the defendant's finances. Although a defendant's insurance coverage is discoverable, it is generally not admissible into evidence and a defendant's financial status is not even discoverable as it does not tend to prove a proposition regarding a defendant's conduct. Unfortunately, you may be required to disclose far more information about yourself than you may ever learn about a defendant.
Interrogatories are a written series of questions posed by the other side. This is generally the first "wave" of discovery served by both sides. Answers to Interrogatories must be given in writing. The Law Firm of William Babich, LLC. will assist you in preparing your answers.
Even though both parties are entitled to discovery, The Law Firm of William Babich, LLC. believes it has won or enhanced many clients’ cases through the quality investigation done outside of the formal discovery process. Especially before the case begins, an investigation should include photos of relevant objects involved in the injury, a visit to any place important to the events, and interviews of witnesses. The firm often hires professional investigators to complete investigations and ultimately to serve any process in the case. The expense of any investigation generally pays for itself many times over. The firm strongly advises against you undertaking any investigation on your own.
You and Your Deposition
Your deposition is one of the most important parts of your case. A deposition is testimony given under oath, prior to trial. The deposition is taken by the opposing lawyer usually at the offices of The Law Firm of William Babich, LLC.. A court reporter is present to transcribe all of the questions and answers.
A deposition has three purposes. First, it is the opposing lawyer's opportunity to meet you and evaluate you. It is therefore important that you arrive on time, neatly dressed and groomed, and that you are prepared, articulate, and direct. The opposing lawyer will, after the deposition, report to the insurance adjuster how, in that lawyer's judgment, you will be viewed by a jury. Are you the sort of person who evokes trust and sympathy, or are you the sort of person who is not likely to be believed or liked by a jury?
Second, the opposing lawyer will be seeking, and is entitled to know, the facts as seen through your eyes. This means that you will need to be able to recount, as consistently and accurately as possible, the events important to the lawsuit. You will probably be asked many of the questions already posed in Interrogatories - about your background. If you need to, you are entitled to refer to your prior answers when giving your deposition testimony. However, unless otherwise instructed you are to bring no documents or things to your deposition.
Third, a deposition is an opportunity for the opposing lawyer to get you to make damaging admissions. The Law Firm of William Babich, LLC. will discuss these matters with you in advance. Nothing is to be volunteered in a deposition and you are to only answer the questions posed. However, you must anticipate that the opposing lawyer is well prepared, and you must be ready to truthfully manage any manipulation of facts that the insurance company lawyer the may attempt.
The Defense or Insurance Medical Exam
Often, the insurance company behind the defendant will hire a physician to examine an injury victim to dispute the opinions of the treating physicians regarding the victim's medical condition or its cause. This exam is frequently called the I.M.E. for "Independent Medical Exam," which is a misnomer. It is really an “Insurance Medical Exam,” often presenting a predictable opinion from a small group of certain doctors who make a substantial portion of their incomes by repeatedly providing the negative opinion the insurance company wants to hear, and for which it handsomely and repeatedly pays.
At the exam, you should keep notes of the examining doctor's actions and remember that you are not there for treatment. A report by the doctor examining on behalf of the insurance company is required to be submitted, and The Law Firm of William Babich, LLC. will share a copy of the report with you.
Our Discovery About Your Case And How You Can Help
You can be a great help to your case by sharing with the firm any information you have concerning the parties and witnesses to your case. Every detail that you can recall concerning the individuals involved will assist in better preparing for their depositions. Additionally, if you review the discovery requests and the responses of the defendant, you may have insights into matters that will help your case. The key is to stay involved in the case, review the discovery, and to give the firm any useful feedback you might have.
Settling Your Claim
Over 95% of all civil actions conclude by settlement. A settlement eliminates the risks associated with trial and often provides a guaranteed source of funds for medical treatment and income replacement, as well as some measure of compensation for non-economic damages and permanent impairment.
To reach an appropriate settlement, The Law Firm of William Babich, LLC. evaluates your case based upon the injuries, damages, losses and liability picture. In Colorado, statistics are routinely compiled as to verdict results, and are broken out into categories for type of case and injury. Additionally, the Jury Verdict Reporter, and the ATLA Exchange (an electronic database developed by the Association of Trial Lawyers of America), give reports of verdicts and settlements of every stripe in Colorado and the United States. This information, coupled with experience of The Law Firm of William Babich, LLC., provide the tools for evaluating your case.
Often, settlements are mediated. The mediator is often a retired judge selected by both parties to assist in arriving at an appropriate figure.
No case will settle unless you are prepared to win at trial. The best formula for a successful settlement is thorough preparation for trial. The Law Firm of William Babich, LLC. will discuss settlement of your case with you and guide you through the process every step of the way.
As with your deposition, it is important for you to arrive appropriately dressed and well-prepared. The Law Firm of William Babich, LLC. will prepare you to present your testimony. The Law Firm of William Babich, LLC. will have worked to arrange the appearance of your witnesses and prepared your exhibits. You should be aware of potential delay, as civil trials are often postponed. You should also be prepared to be encouraged by the Court to continue settlement conversations. A case can be settled at any time during a trial, even after a verdict.
Remember that as a party to a jury case, one member of the jury will probably be looking at you and your lawyer throughout the trial. The judge will instruct the jury not to speak directly with the plaintiff, the opposing party or counsel; and you must respect these instructions. You may look at the jurors but you should not gesture at them. Criminal penalties may attach to any misconduct between a party, counsel and a sitting juror. After the trial, your lawyer may contact jurors to thank them and to get feedback from the jurors as to their deliberation and verdict.
The party calling a witness is the proponent of the witness and generally is limited to ask direct questions which do not suggest an answer. Defense counsel is entitled to cross-examine each witness the plaintiff calls. You will probably testify as a witness for your case. After plaintiff's evidence is presented, the defendant presents witnesses. The Law Firm of William Babich, LLC. will cross-examine those witnesses on your behalf, as well as deliver opening and closing statements.
At the conclusion of the evidence, the jury is instructed on the law, retires to deliberate and to render its verdict.