If the person or company that caused your injuries is insured, you will have to deal with that insurance company to pursue a claim for compensation for those injuries. This can be challenging because, although the claims adjuster for that insurance company may seem friendly and act as though he/she has your interests in mind, generally they do not. Although there are possible exceptions, the claims adjuster’s only interest is to pay out as little money as possible for compensation, no matter how strong the liability is against their insured, or how significant your injuries and damages are. In cases of more significant injuries and damages, it is also important to know how much the other person has in insurance coverage for their negligent acts and omissions (i.e., liability policy limits). Many times, insurance adjusters don’t want you to know that information, and will try to settle the claim for as far below the policy limits as they can. Under Arizona law, if you file a lawsuit against the at-fault party, the policy limits of all applicable insurance must be disclosed.
Another factor is whether your injuries are permanent or may lead to additional medical problems in the future, such as an increased risk of arthritis or the need for joint replacement, simply arising out of the original injury or injuries. Future medical problems will likely require additional treatment and result in increased economic impact (such as the cost of treatment and even more time out of work). Besides knowing that these issues exist, lawyers also know what questions to ask, and whom to ask. If these types of damages exist in your case, a competent lawyer will know how to seek compensation for you in this regard; claims adjusters most likely won’t educate you on these matters, or accept them as part of your overall claim, even if you bring them up without an attorney by your side. And this is significant because once you settle your case, there is no going back for more when these future damages later materialize.
Lastly, if you have another source of payment for the treatment of your injuries, such as private health insurance, AHCCCS, ALTCS, Medicare, etc., it is very likely that that insurance plan will want their money back from any compensation you recover from the party that injured you. This is generally known as a “lien”, right of subrogation, or right of reimbursement. Remarkably, these types of health insurers often claim such rights even when they don’t have them. And even where they do, there are legal and equitable arguments available that can result in a reduction or compromise of the amount claimed for reimbursement. Bottom line, these are very dangerous waters to try to navigate without an attorney representing you, advising you, and fighting for your rights.
The insurance companies do not need to know the intricacies of lien law, but they do not want to be responsible for the lien claims after they pay you a settlement. So, what they will often do is pay liens on your behalf, some of which may not be valid and some of which could have been reduced through a process called “compromise.” Even some lawyers don’t take this very seriously or don’t have enough knowledge to effectively protect their clients’ rights in these lien matters. We at Dwyer Hernandez, P.C. do take liens very seriously, and are very well educated and experienced at dealing with them. In fact, both Amy Hernandez and David Dwyer have been asked by lawyer organizations to hold classes (called seminars) for other lawyers regarding liens.
These are some of the factors that go into the consideration of when and why you may need a lawyer. Generally speaking, the more serious your injuries and damages, the more likely you will need a lawyer to help you through the process. And regardless of the “value” of your case, there are many risks of trying to handle lien issues without a skilled attorney.
When you hire a lawyer (we also use the term “retain” a lawyer), you will likely hear the terms “fees and costs.” These are separate matters, and you should be aware and understand the difference right from the beginning.
Fees: Fees represent what the lawyer or law firm is paid for the work the lawyer and his or her office staff does on the case. This is how lawyers get paid, pay their employees, pay their rent and own insurance, materials, equipment, and cover other overhead. Dwyer Hernandez, P.C., like many other lawyers and law firms in our line of work, allow for what is called a “contingency fee.” A contingency fee is a percentage of the amount of financial compensation the lawyer or firm recovers for you. The fee percentage depends on the type of case and the amount of work expected to litigate the matter to its conclusion. The fee is set at the beginning of the case and is set forth in the agreement signed by both the client and the attorney at the initiation of the representation and attorney-client relationship.
Costs: During the course of your case, certain costs will arise. These costs include, but are not limited to (and not necessarily in this order), filing the lawsuit, ordering records and bills from your medical and healthcare providers, taking depositions, meetings with your doctors and health care providers to talk about and learn more about your injuries and damages, and sometimes the hiring of expert witnesses necessary to establish liability and damages. Instead of asking the client for money to cover those costs upfront or as they are incurred, the law allows attorneys to “front” the client’s costs until they get paid back (i.e., reimbursed) when the case settles or results in a verdict from trial.
Costs are different from fees, because the lawyer doesn’t earn them. Rather, the client is simply paying the lawyer back for money the lawyer spent on the client’s behalf.
This is a very good (and common) question, but there is no definitive answer. Statistics vary, but most personal injury cases settle “before trial.” The numbers, however, can be deceiving. If a case settles within weeks of the event that caused the damages (in other words, almost right away), it goes into the same category as cases that settle perhaps years later on the way to court the first day of trial—both have settled “before trial.” By the time the typical case goes to trial, it will be anywhere from one to three (1-3) years after the lawyer and the client first meet. For less complex cases, it would be closer to the one-year estimate; for more complex matters (or those where the injured person is treating for an extended period of time), it could, of course, take significantly longer to get to trial.
We tell our clients to be prepared for the event that their case has to go to trial. It may not, but if it does, it will likely be over a year after first meeting with the lawyer. At Dwyer Hernandez, P.C., we prepare every case as if we are going to trial. And we do try a good deal of cases. This works to your benefit as a client, because whether you want to avoid trial or not, you definitely want a lawyer who not only is willing to try cases, but has the reputation for doing so and the skills to do so well. See Do I have to go to trial, below.
Furthermore, even after the parties reach a settlement or a jury reaches a verdict, it could take several weeks for the compensation money to be paid and then some time to distribute those funds once received. Your case may involve medical and other liens (see above), and figuring out the validity and final amount of the liens could also take some time. Finally, even if a verdict is reached, either (or any) party may appeal the verdict, which can result in further delay.
The short answer is no, but that significantly oversimplifies the considerations that surround the issue of whether a case goes to trial or not. We often tell clients that their case could settle immediately if they were willing to accept an amount from the insurance company that severely undervalues their injuries, losses, and damages (i.e., the value of your case). Most insurance companies would jump at the chance to get rid of a valid claim by paying less than the case’s value. So, if you are willing to take less than full value of your claim, your case will likely settle rather quickly. We at Dwyer Hernandez, P.C. do not take cases with the primary goal of settling the matter quickly; again, our job is to obtain the full value of your case.
There is much to do during the life of a personal injury case (we call this pre-litigation and litigation), and that is what takes so long. But even after all the hard work is done, some cases still do not settle, and have to go to trial. Why? Well, usually it’s because the parties (the plaintiff/claimant and the insurance company) simply cannot come to an agreement as to what is “reasonable.” There may be a legitimate dispute as to the liability (whose fault the injury-causing incident is, for instance) or how much it will take in money to fully compensate the plaintiff for his or her injuries, losses, and damages.
We want you to know that, although Amy Hernandez and David Dwyer love to try cases, trying cases is not our primary goal. Outstanding service resulting in the full recovery of fair compensation are what we strive to achieve every day and for every client. But again, no matter who you hire to represent you for injuries caused by someone else’s wrongdoing, you want that lawyer to be willing, able, and enthusiastic about going to trial and telling your story. Believe us, not all lawyers are equal, and many (even those who say they do) do not try cases. That equates to settling for less than full value of your case. Some firms get away with that kind of practice because they take on many cases, and justify smaller settlements on each (or the majority) of them.
During the part of your case we call litigation (once a Complaint has been filed in Court, initiating the lawsuit), the two (or more) sides engage in a process called “discovery.” During the discovery phase of your case, you will be asked to respond to many questions from the other side, some in writing and some verbally. The written questions are called “interrogatories” and “requests for the production of documents.” The verbal questioning is what happens when you are deposed. It is called your deposition. A deposition is the other side’s opportunity to speak with you, with you under oath, and ask you questions relative to the case. Any party’s lawyer has the right to depose you, but there will likely be only one deposition of you. At your deposition, along with your lawyer and the other lawyer(s), there will be a court reporter (stenographer) present, who will take down everything said by anyone in the room during your deposition.
Each side has the right to depose the other side, or any independent or expert witnesses. When the other side’s lawyer takes your deposition, of course your lawyer will be there with you. In fact, before the deposition, you will meet with your lawyer to prepare for the deposition. In the preparation meeting, you will learn much more about what a deposition is about and what to expect. Practically everyone is nervous before their deposition, but you shouldn’t be. All you have to do is answer the other attorney’s questions honestly and thoughtfully, even if that answer is “I don’t know” or “I don’t remember.” Honesty is the key.
After the other attorney is through questioning you, your lawyer will have the opportunity to ask you follow-up questions. But there may be nothing on which to follow up, so don’t be surprised if your attorney doesn’t ask you anything in your deposition.
The court reporter will transcribe your deposition into a booklet form, known as your deposition transcript. You will have an opportunity to read your deposition transcript at a later date. The transcript of any deposition may be used at arbitration or trial of the case.
Other witnesses and parties may be deposed throughout the case, including eye witnesses to the event that caused you injury, family and friends (if listed as witnesses of what your injuries, losses, and damages have caused you), and even doctors and other healthcare providers involved in the case.
Mediation is a term that simply means “an attempt to settle a case.” Another term for it is a “settlement conference,” and we will sometimes use the terms interchangeably. It is a form of what is known as “alternative dispute resolution” or ADR. Not every case is right for mediation, but it is available in all cases as an alternative to trial to resolve the differences between two or more parties. If a case is right for mediation, it is usually conducted after some of the discovery in the case is completed.
The typical mediation is held in the offices of a law firm, usually that of the mediator, and is more particularly referred to as “private mediation.” The parties (through their attorneys) usually agree to the person, usually another attorney, who will act as mediator, and the mediation will be held in that person’s office, although it can be held just about anywhere.
Courts also offer a form of mediation, commonly referred to as a settlement conference. Here, a judge, or a judge pro tempore, will conduct the settlement conference. These are sometimes less successful than private mediation, but they do not cost the parties any money. Private mediation does cost money, and the parties usually simply split the fee of the private mediator. Some private mediators are retired judges, while some are practicing attorneys who do a good job getting people to compromise and come to an agreement.
Keep in mind, mediation is never binding on the parties, and if a resolution is not reached, the case will simply go to trial (or arbitration, see below). The only loss is the fee, if any, paid to the mediator.
Arbitration is another example of ADR. We commonly describe arbitration as a “mini-trial,” where witnesses testify and evidence is presented, but all the decisions are made by the arbitrator (or “arbiter”). Whereas a typical trial of a personal injury case can go one week or more, the same case can likely be arbitrated in one to two days. Like mediations, not every case is right for arbitration.
As stated, the arbitrator makes all decisions: he or she makes all legal and evidentiary decisions (like a judge would in a trial) and decides what the facts are and what the award to the plaintiff, if any, will be (like a jury would).
Arbitrations can either be binding on the parties, or subject to an appeal de novo, which means the parties try their case in court as though the arbitration never happened if either party is dissatisfied with the result and thinks it can do better in front of a jury.
Arbitration can be a very effective tool toward alternative dispute resolution, and your attorney will discuss it with you if it is appropriate in your case. Even if you and your attorney decide it is appropriate in your case, however, for it to be binding, all parties have to agree to it. Agreeing to arbitration will effectively remove your case from the court system.
Typically, an appeal can only occur after your case is tried to a verdict, and the verdict is entered into “judgment.” But even then, there has to be an “appealable” issue, meaning something went wrong at the trial level to justify review from the Appellate Court or the state’s Supreme Court (or both). Just because a party is unhappy with the result of the trial (i.e., the verdict), or a part of it, doesn’t mean there is a viable appeal. Appeals can be costly, so the party who thinks he or she wants to appeal, should think about it long and hard with their attorney.
Many times the result of even a successful appeal is that the case is “remanded” back to the trial level for another trial. Trying a case the first time is typically an expensive endeavor; trying the second time isn’t any cheaper.