When you have been injured in an accident, you may wonder if your claim necessitates a call to a personal injury attorney in Orange County. While it is true that some small claims may be able to be settled without the help of a lawyer, if your claim involves your having missed more than a few days of work, several thousands of dollars in expenses, or debilitating injuries, it will be best if you retain an attorney to help you. There are a number of stages of the personal injury claims process your case will go through. Below, we explain what to expect following your accident.
The most important thing to do after you have been injured is to seek medical help. You can either go to a hospital or to your doctor’s office. If you fail to do so, it is possible that your insurance company and a jury will both assume you really weren’t hurt in the accident after all.
After you have sought medical help, your next step is scheduling to meet with an Orange County injury attorney. Getting an attorney’s help early is vital to proving your case. It is thus important for you to be careful in your selection, and so you should seek consultations with more than one attorney. After you have done so, you should choose the attorney that you feel is best for you. Your attorney will draw up a fee agreement and explain the different types of fee arrangements that are available. After you sign the fee agreement, your attorney will commence their work on your behalf.
After retaining a lawyer, have him or her thoroughly investigate the facts of your case and review all of your medical records. As a part of this process, your attorney will conduct an in-depth interview of you regarding your injury, history, medical information, any medical conditions, and the treatment you are receiving. In order to assist your attorney in preparing your case, you should be completely truthful and provide detailed responses to your attorney’s questions.
Your lawyer will obtain your medical records from all offices and hospitals where you have received treatment. You will also need to provide your attorney with copies of all of your bills related to the accident. The process of obtaining medical records may take several months. After your attorney receives all of the information, they will then carefully review them. In the event that the attorney determines that you do not have a case after reviewing your medical records, they will inform you of that fact. Such a determination is normally communicated quite early on in the process. If your attorney determines that you do have the basis for a claim, they will then proceed to the next step.
If a review of your records demonstrates that your injury claim is a smaller one, your attorney may send a demand letter on your behalf. In many cases, a settlement is able to be reached in a smaller case without a lawsuit ever being filed. If your case is a larger one in which your attorney does not believe a settlement will be possible, they will file a civil complaint to initiate your civil lawsuit. Claims involving permanent injury should not be settled prior to suing. Claims also should not be filed until you have reached a stage called maximum medical improvement, or MMI, because filing before you have reached MMI could lead to an undervaluing of your actual damages.
Your attorney will file the civil complaint, a document in which your claims are detailed. This will commence the actual trial case. Your attorney will make certain to observe the state’s statute of limitations, which are laws providing that suits must be filed within a certain time after an injury or a person’s ability to sue will be forever barred.
After your lawsuit is filed, your attorney will begin the discovery phase. You can expect your attorney to depose witnesses, send requests for documents from the defendant’s attorney, and send interrogatories that the defendant will be required to answer. When depositions begin, you should expect that both you and the defendant will be required to answer questions from both your attorney as well as the defendant’s attorney under oath. In addition to you and the defendant, all other witnesses will also be deposed. In total, the discovery phase can last between anywhere from six months up to a year.
Your personal injury attorney in Orange County might be able to reach a settlement with the defendant’s attorney and insurance company through negotiating directly with them. In other cases, the complexities will require mediation, an alternative dispute resolution method aimed at facilitating a settlement agreement. If mediation leads to an agreement, your case will end at this stage. In the event you are unable to reach an agreement, a trial will be set.
You should expect your trial to last anywhere from one day to weeks, depending on how complex it is. You should understand that your case may be rescheduled to a different trial date. Judges often reschedule trials due to their own trial calendars.
If you have been seriously injured due to the negligence of another, it is important that you seek help as soon as possible. It is important not to just simply settle with the other person’s insurance company, as insurance companies will attempt to minimize their losses. Your injuries may also require treatment that is ongoing, so you will need someone to evaluate your damages, both currently as well as into the future. An Orange County personal injury attorney at Russell & Lazarus APC can guide you through the personal injury claims process.
If you’ve been involved in an accident and submitted an insurance claim, you may be wondering what happens after you claim is filed. Here is a look at the typical steps the insurance company will take following a claim. If you have further questions please contact a Newport Beach personal injury lawyer.
In complicated insurance claims such as multiple car accidents, the insurance company may undergo a formal investigation of the claim. The insurance company will look into the cause of the accident and try to access fault. Contact our Newport Beach personal injury lawyer for more information and schedule and free initial consultation.
Unfortunately, many accident victims end up paying for their own injuries because they wait too long to reach out to an attorney and get started with the personal injury claims process. Time limits for filing a claim almost always apply after you are injured, and putting off taking action could mean that your ability to file a claim against the other driver’s insurance company slips away.
Don’t wait until it’s too late to reach out to us. Even if you don’t end up hiring us as your attorney, making a simple phone call can go a long way toward answering your questions and protecting your rights after an Orange County accident. In a completely free case evaluation, an attorney can tell you:
The best part is that your case evaluation is completely free — even if you don’t decide to hire us or decide to move forward with the personal injury claims process..
A Newport Beach personal injury attorney with Russell & Lazarus would be happy to speak with you today in a completely free, no-obligation case review to talk about what happened to you and answer your questions. Reach out to us today, or simply fill out the confidential contact form on this page to learn more about how we can help.
A statute of limitations is a legal term of art. In a nutshell, it refers to the time period following an accident after which legal proceedings must be brought or a lawsuit must be filed. The statute of limitations in CA personal injury cases is ordinarily two years from the date the accident took place and the injuries were sustained.
Generally speaking, this means that suit must be filed within two years of the accident, or the injured plaintiff is forever barred from seeking recovery for his or her injuries. The two-year statute of limitations in CA personal injury cases is normally a hard and fast deadline.
People often wonder why statutes of limitation and notice deadlines are so strict and unforgiving. The main reason for statutes of limitation and notice deadlines in personal injury cases is to ensure witness availability for trial and to prevent evidence in the case from growing stale. At least in theory, after two years (and, in states where the statute is longer, three years), essential accident witnesses move away or die, parties’ and witnesses’ memories about the accident fade, and evidence disappears. Enforcing a strict statute of limitations and/or notice deadline helps to prevent these occurrences.
In California, several exceptions to the hard and fast statute of limitations deadline exist. For example, if the injured person was a minor (i.e. under the age of 18), or was mentally incompetent at the time when the accident took place and the injuries were sustained, the statute of limitations in CA personal injury cases can be extended out for a period of time. A minor has until his or her eighteenth birthday, plus an additional statutorily prescribed period of two years, to file a lawsuit for injuries sustained in an accident. In cases where an unknown injury exists and is later discovered, that fact may also be used as a basis for postponing the two-year statute of limitations deadline, and suit can be filed beyond the normal deadline. In legal terms, these exceptions “toll” the statute of limitations.
In personal injury cases – especially when a statute of limitations deadline is looming in the near future – it is essential to sue every potential defendant in order to maximize the chances of recovery. In fact, if an attorney does not sue every potential defendant in a personal injury case, he or she could be subject to legal malpractice.
When an accident involves a government vehicle, or occurs in a public place (such as a slip and fall on a public sidewalk), it often means that a governmental entity or agency, such as the city, county, police department, or other local governmental entity, must be named as a defendant in any lawsuit that is filed. A public agency’s culpability in a personal injury case usually depends upon the level of control that government agency had over the vehicle involved in the accident or the public area (such as a roadway or public sidewalk) where the accident occurred. Under the law, public agencies are treated as “persons.” As such, they can file a lawsuit and lawsuits can be filed against them.
In personal injury cases where a public agency is involved, a notice period (or an additional “statute of limitations” period) is imposed. For example, in the State of California, an injured person has 180 days from the date of the accident to file notice of a claim directly with the agency. The purpose of this notification is to alert the agency to the facts and circumstances surrounding the accident, and to let the agency know that if a resolution is not reached, the injured person plans to file a lawsuit in the near future. The claim must then be formally denied by the public agency in order for the injured person to file a lawsuit with the court.
If a lawsuit is filed beforehand – without first satisfying the 180-day notice requirement – it is very likely that the governmental agency will file a motion to dismiss the lawsuit. The lawsuit filed by the injured person will then be subject to dismissal by a court.
After being injured in an accident and sustaining injuries, it is essential that you have legal representation from the beginning of your case and throughout the entire litigation process. Although “tolling” a statute of limitations is theoretically possible, it is only available in a limited number of circumstances.
They key to avoiding a statute of limitations problem in your case is to contact an experienced California personal injury lawyer as soon as possible after the accident. Your attorney will take the necessary steps to safeguard your rights, and, if necessary, file suit in order to protect the statute or notice period from expiring. The statute of limitations and notice periods are strict deadlines, and failing to follow the proper procedures can lead to a loss of money – and even the inability to file a claim against a particular defendant in the first place.
Our lawyers are experienced in litigating personal injury cases on behalf of plaintiffs and are ready and willing to assist you through the personal injury claims process. If you have questions about the statutes of limitation in CA personal injury cases, please feel free to contact our CA Personal Injury Lawyers at any time, via telephone or email, for an initial consultation.
There are three common stages to a personal injury case: investigation, negotiation, and litigation. While in many cases there is overlap of these stages, often cases can be resolved without litigation. Here is what you can expect at each stage during the process according to Orange County personal injury attorneys.
Mediation is a non-binding informal proceeding that employs a neutral third-party or “mediator” to assist parties in a legal dispute to attempt to negotiate a settlement. The mediator’s role is to keep the parties communicating and exploring settlement options with the end goal of avoiding trial.
Mediation may be a voluntary process or it may be court-ordered. The mediator has no authority to make any party settle the case. Any settlement must be agreed upon by all parties.
The parties and their attorneys meet, typically at a neutral location such as the mediator’s office. In a personal injury case, often the defendant does not attend. Instead, there will often be an insurance claims adjuster or corporate risk manager present.
There are several tools a mediator may opt to use to further the mediation process: Opening, Private Caucus, Private Conferences, Bracketing and Mediator’s Proposals.
During the opening all of the parties are brought into one room with their attorneys and the mediator. The mediator will typically take the opportunity to welcome the parties, check to see that full authority to resolve the case is present and explain how he plans to proceed. Then, counsel for the party bringing the claim (plaintiff) is given an opportunity to give an opening statement. His role is to set forth a short presentation of the facts of the case from his client’s perspective and make a settlement demand. Then, the defense attorney will be given an opportunity to respond and present the facts from his client’s perspective. Plaintiff’s counsel is often given a chance to respond afterward.
During the opening, the plaintiff is not required to answer any questions. Typically, the plaintiff’s lawyer will advise the plaintiff not to answer any questions or speak freely.
After the opening, often the mediator will put each party and his/her respective attorney into a private room. The mediator then will speak privately with the attorney and client together. During these caucuses, the mediator will discuss strengths and weaknesses of the case and carry back and forth demands and offers of settlement. The attorney may choose to do all of the talking at times or may allow the client to speak more freely. Anything the attorney asks the mediator not to disclose to the other side must be held in strict confidence.
At times, the mediator may pull one or more of the lawyers out to talk in private. This can be for a number of reasons. It could be that the mediator senses an issue the client has that cannot be resolved through mediation. Or it may be that there is an issue between the attorneys that needs to be resolved such as payment of liens. Or it may be that the mediator feels something needs to be said directly by the lawyer to the other side.
In any event, it is simply another tool in the mediator’s arsenal that she may use to try to get all the parties to reach an agreement.
Bracketing is a tool used by mediators to try and bring parties closer to a settlement when there is a large disparity between the demand and the offer. Essentially, the party proposes to move to a specified settlement number in exchange for the other party moving to a specific number. For example: the plaintiff may offer to lower their demand from $200,000 to $100,000 if the defendant agrees to raise their offer from $10,000 to $50,000. $100,000 and $50,000 are a bracket offer. The defendant may accept the bracket and counter as if $50,000 was his last demand, reject the bracket and propose a counter-bracket, or simply reject the bracket.
A mediator’s proposal is tool that a mediator may use to try to reach a settlement when the parties are unable to reach an agreement. When both parties reach a point where neither is willing to negotiate further, the mediator declares an impasse.
If the parties are agreeable to her doing a proposal, she will then select a number somewhere between the last offer and last demand and propose that the case settle for that amount. Each party is given a set amount of time to consider the number and respond “yes” or “no” to the mediator in confidence. If all parties respond “yes” then there is a settlement for the specified amount. If either party responds “no” then there is no settlement and any party responding “no” is not informed as to whether the other party said “yes” or “no” so as to preserve negotiation strength. The number the mediator chooses is simply a number that the mediator thinks may be close enough that each party can live with it.
Orange County injury lawsuits can be settled a number of ways outside the courtroom. Mediation is only of a lawyer’s tools for resolving your case short of trial.
Personal injury mediation is an attractive alternative to a court trial, and increasingly, it’s becoming a required part of the pre-trial process. A mediation agreement is non-binding, but it can help you obtain a settlement much faster, saving you a lot of time and aggravation.
As legal professionals skilled in personal injury mediation, our attorneys at Russell & Lazarus APC may be able to settle your dispute without your ever having to set foot inside a courtroom. Quite often, mediation results in a settlement agreement that proceeds to completion without further litigation.
Below, we review the mediation process and what you can expect of it.
Personal injury mediation is an alternate dispute resolution method you can choose instead of a civil trial. In some cases, a judge will actually order a mediation attempt first. Both parties sit down with a neutral mediator to discuss the case, and then try to negotiate a settlement everyone can live with. The only attendees should be you, your personal injury attorney, the defendant, their attorney, the defendant’s insurance adjuster, and the mediator.
Here are some of the things you can expect:
He or she won’t take sides and will never offer any legal advice. That’s why you need a personal injury lawyer. The mediator cares only about facilitating communication and helping you reach a settlement. If you and the defendant can’t agree on a mediator, the court will appoint one.
The people mentioned above will meet together in a conference room. You and your lawyer will sit on one side of the table and the defendant’s party on the other, with the mediator at the head of the table. Both attorneys will then present their arguments. Expect the defendant’s attorney to question your story, your believability, your case’s value, even your integrity. It may not be pleasant, but must let them make their case, and they must do the same for you.
After both sides have presented their arguments, the mediator will move each party into different rooms. The mediator will then gather information from both parties, and shuttle back and forth with demands, offers, and counteroffers until you either stall out or come to an acceptable agreement.
You and the defendant may be so far apart in the beginning you may think you’ll never be able to agree on anything. Their first offer will probably be ridiculously low. It may take hours of negotiation to even approach something like common ground. Expect to spend a minimum of several hours in mediation. It may take a full day or longer.
Personal injury mediation is based on give-and-take. Both sides have to go in willing to work toward the settlement, or the process will fail. Be reasonable with your expectations, knowing the other party is trying to get the best deal possible from their point of view, just like you are. Listen to your lawyer.
Because it’s a lot less expensive, messy, and painful than a trial, and takes less time. Mediation also lets you control most aspects of the case, rather than a jury or judge. Plus, once both sides agree to the deal, you never have to worry about an appeal or an overturned verdict.
Almost certainly. Mediation is routinely used to resolve slip and fall cases, defective product cases, vehicle accident lawsuits, and similar business torts. (A tort is a civil lawsuit intended to right a wrong caused by the defendant’s failure to take reasonable care to protect the injured party).
If someone else’s negligence or defective product has caused you injury, you need an experienced personal injury attorney to help you negotiate a decent settlement or take the case to trial. To learn more about how we can help you navigate the personal injury claims process, call Russell & Lazarus APC today for a consultation.
Slip-and-falls, dog bites, car accidents, and other personal injuries are incredibly disruptive on very many levels. The medical bills, which can easily be tens of thousands of dollars or even more, quickly pile up. Meanwhile, the insurance company calls almost constantly demanding to settle the case, even though you are still unable to return to work. On top of that, there is so much emotional and physical pain that it seems like life may never be the same again. Fortunately, the litigation part of the personal injury claims process addresses all these issues.
An attorney can connect victims with a qualified injury specialist who will charge no money upfront. Furthermore, your attorney handles the insurance company for you, so you can simply focus on getting better. Finally, although the financial compensation available cannot return things to the way they were, the money will greatly help you and your family adjust to the new normal.
The victim, or the victim’s legal representative, is the plaintiff in a personal injury litigation case. As such, the victim/plaintiff has the burden of proof to prove negligence by a preponderance of the evidence, a legal term which means “more likely than not.” In most contexts, negligence is simply a lack of ordinary care. Whether or not the case actually goes to trial, and it most likely will not, this requirement looms large in every phase of the case.
The tortfeasor (allegedly negligent actor) is the defendant. If the tortfeasor had an auto, homeowners, business liability, or other insurance policy, the insurance company has a duty to provide legal representation in every phase of the personal injury litigation case. So, for practical purposes, the victim/plaintiffs’ opponents are not the tortfeasors themselves, but the insurance companies that represent them.
In many situations, the tortfeasor is not the only person who is responsible for the victim/plaintiff’s damages. Various legal theories may draw third parties into the litigation as well, such as employers, property owners, or other business owners. Although these third parties were not personally responsible, they are ultimately responsible, because they created the environment that led to the victim/plaintiffs’ damages.
As the filing party, the victim/plaintiff may have some discretion as to where to file a legal claim for damages. Typically, the proper jurisdiction is the county where the plaintiff resides or where the car crash or other incident took place. If there is a choice, an attorney decides where to file the personal injury litigation case based on a number of factors, including:
If the evidence is rather strong and liability is reasonably certain, many personal injury litigation matters settle before the plaintiff even files a claim. However, the great majority of these cases are settled in court, at least to some extent.
Whereas a personal injury attorney is committed to maximum compensation for victims, an insurance company lawyer is committed to minimum compensation for victims. This is because these companies lose money when they pay personal injury litigation claims. This process usually begins with procedural motions.
Some of these actions, like a motion for summary judgement, are designed to deny the victim/plaintiff a day in court and throw the case out altogether. Others, such as motions in limine, strive to limit the evidence or arguments that the victim/plaintiff can bring up and therefore make it harder to meet the aforementioned burden of proof.
Pretrial motions are argued in court, but the discovery process takes place almost entirely out of court. Essentially, the parties exchange information about their respective cases to avoid what the law calls “trial by ambush.” Such exchange usually takes place both in writing, by exchanging key documents, and in a nonwritten form, such as depositions and medical examinations.
Most all of these cases — up to 90 percent according to some estimates — are settled out of court through either informal or formal mediation.
Informal mediation usually happens through an exchange of letters, phone calls, e-mails, and other communication between the attorneys for the two sides. These types of negotiations are usually successful where there are few disputed issues and the outcome at trial is reasonably certain.
In other situations, the judge overseeing the case will appoint a third-party mediator who helps to facilitate a settlement between the two parties. These sessions usually occur in an office building and consume either a half or a full day. If the mediator is successful, the case is essentially over at that point. If the mediator is unsuccessful, the parties schedule a trial date.
If you or a loved one was hurt or killed in an accident that was someone else’s fault, contact Russell & Lazarus, APC, to start the personal injury claims process today. Our firm does not charge upfront legal fees in these cases.
One of the most common misunderstandings in personal injury is that your case begins when your lawsuit is filed. However, the personal injury lawsuit begins when you first speak to an attorney. When your attorney goes to file suit on your behalf he or she will have most likely have been working on your case for months or more before filing your lawsuit with a court of law.
The California statute of limitations for personal injury is two years from the date of the negligent act or omission. That means you and your attorney have at least two years (or longer depending on the specific type of negligence involved) for you to receive medical treatment and for your attorney to collect all the necessary evidence, and find all relevant witnesses to your personal injury claim. Whether your personal injury lawsuit is filed the day after you are injured or the month before the statute of limitations ends, there will be literally no difference in the eyes of the court.
However, if your attorney files suit before collecting all of the relevant evidence and witnesses you may be at a disadvantage by filing prematurely. An experienced attorney will be able to say whether all avenues of investigation have been exhausted and will also try to negotiate a fair settlement for you before filing suit in the majority of personal injury cases. There are instances where filing suit immediately is the right action, but it is an exception rather than the common rule.
We are experienced trial attorneys who use our knowledge to push negotiations towards settlement without filing suit, and in the event that settlement is not possible, the efforts made towards settlement will aid in transitioning to the litigation phase of a personal injury claim. Once your attorney informs you of the maximum settlement offer from the defendant or the defendant’s insurer, you have the choice to accept that offer or reject it and file a personal injury lawsuit. We will give you the necessary information to make this decision.
Once you and your attorney decide that filing suit is the best option, your attorney will draft a complaint stating any and all claims against any negligent parties that contributed to your injuries. If your complaint does not include all of your potential claims, you cannot go back and file an additional lawsuit after the jury has returned a verdict. In addition to filing your lawsuit in the correct court of law, a process server approved by the court must personally serve every defendant named in your lawsuit.
Once a defendant has been personally served, he or she will have 30 days to file an answer with the same court, but in all cases must file an appearance with the court by a deadline set by the judge. After all defendants file an appearance or responsive pleading, a period of discovery will begin. Discovery is the legal term for a period of time where your attorney and the defendant’s attorney are allowed to submit written requests called Interrogatories, requests for admission, and requests for production of documents to each other.
In addition to sending written discovery, both parties may subpoena witnesses, including the plaintiff and the defendant, to give oral testimony in front of a court reporter. This process is called a deposition or testimony taken under oath. A court reporter takes down every word that is said by both side including questions and answers. The court reporter then makes available a written transcript to both sides that can be submitted at trial as evidence.
There are many complex rules of procedure that outline what types of documents may be filed with the court for both the plaintiff and the defendant and when such documents may be filed during the course of the personal injury lawsuit. Assuming there are no issues in discovery, and both parties have received satisfactory responses, then a series of motions may be filed to organize the issues to be presented to the jury or judge before trial. Once all motions have been heard and decided by the judge a trial calendar will be set.
Most civil lawsuits are set on a trial calendar with a number of other cases to be heard during a specific period of time. For example, your case could be set for a particular week or a particular month and the judge calls up each case according to their number on the list or may skip around the list. Each judge even within the same county may have different ways to call cases up for trial. Just because your case is set on a trial calendar does not mean your trial will occur within that period of time due to other cases on the judge’s calendar. Occasionally, trials will be specially set on a fixed date either due to the length and nature of the case or at the request of both parties.
Once your case is called before the judge for trial you will need to appear as the plaintiff for the duration of the trial. Trial begins with something called voir dire. Voir dire is the process by which the attorneys for both sides select a jury to hear your case and render a verdict. In the event that your attorney requests a bench trial, you would not do voir dire as only the judge would hear your case, and not a jury. If you and your personal injury lawsuit attorney have elected to use a jury, it can take anywhere from half a day to several days to select a full panel of jurors and alternates.
After the jury has been selected, opening statements will be made by your attorney first, and then followed by the defendant’s attorney. Once opening statements are over, the plaintiff’s attorney then presents evidence for as long as it takes. Depending on how much evidence and how many witnesses will be called, this period can last from a few hours to several days. The defendant’s attorney then follows with their evidence and witnesses. Once all evidence has been presented and all witnesses have testified, the attorneys then give their closing statements. At the end of closing statements the jury is given a set of instructions by the Judge and then is sent out to deliberate.
The jury may take as long as they need to deliberate, review the evidence, and even ask the judge for clarification and instruction on certain issues. Depending on the complexity of your personal injury claim, deliberation could last between a few hours to a day or two. At the end, the jury will return a verdict form deciding in favor of the plaintiff or the defendant in addition to potentially awarding a verdict amount for the party the jury decided in favor of.
Given the complexity of the above process it is important to select a personal injury lawsuit attorney with experience not only in settling cases before trial but also in selecting a jury and with knowledge of the procedural requirements of filing documents and trying cases before both judges and juries.
To win a personal injury lawsuit, the plaintiff has to meet a “burden of proof” requirement. That is, the plaintiff has to present enough evidence to satisfy the judge or jury that the defendant more likely than not caused injury to the plaintiff.
When considering the burden of proof, the first step is to determine which party has responsibility for proving his or her side of the facts. The second step is to consider the level of proof the party has to offer, or how much convincing it will take for the judge or jury to accept that version of the case.
In personal injury cases, the injured party has the initial burden of proof. Consider this example. In many personal injury cases, the plaintiff claims injury because the defendant either committed some act on purpose or was negligent. Let’s say that Jane invited Martha to lunch. When Martha arrived, she stepped on an action figure that Jane’s son had left on the front porch. Martha fell down and broke her arm. To convince the judge or jury that Jane was negligent, Martha has to prove the following four elements:
Many people are familiar with the burden of proof in a criminal case. The prosecutor has to prove that the defendant committed the crime “beyond a reasonable doubt.” You could also say that no reasonable person would conclude that the defendant had not committed the crime. Fortunately, the standard necessary to convict someone of a crime is much higher than the burden of proof in a personal injury case.
How much effort and evidence will it take for Martha to convince a jury that the elements in her civil case are true? In most civil cases like this “slip and fall” personal injury case, the plaintiff has to prove each element by a “preponderance of the evidence.” This means that on balance, the judge or jury believes that Martha’s version of the facts is more likely to be true. Another way to say this might be that the judge is at least 51% convinced that Martha proved that she broke her arm because of Jane’s failure to tidy up before Martha stepped on her porch.
Another standard or level of proof applied in California personal injury cases is “clear and convincing evidence.” To meet this level of proof, the plaintiff must leave someone with a firm belief that it is highly probable that the plaintiff’s claims are true. “Clear and convincing proof” falls somewhere between the criminal standard of “beyond a reasonable doubt” and the more common “preponderance of the evidence.” The courts apply the “clear and convincing” standard when the plaintiff seeks punitive damages and accuses the defendant of actions that involve fraud, malice, or oppression.
The attorneys at Russell & Lazarus, APC have helped hundreds of injured clients. They apply years of experience to designing successful trial strategies in personal injury cases of all types. Determining the correct standard of proof and how to apply it in the courtroom is one part of the expert care you’ll receive.
When a plaintiff has the burden of proof, the defendant does not have to prove nothing. It is entirely up the plaintiff to put on enough evidence to convince the judge or jury of her position. Of course, even though it’s not necessary, many defendants will put on evidence in an attempt to weaken the plaintiff’s case or prove another set of facts.
There is an exception to this rule. For some causes of action, a defendant can plead an affirmative defense that if proved will negate the plaintiff’s case. Even if the plaintiff proves every element of her case, she can’t win if the defendant offers enough evidence to prove that she should not be held responsible.
For example, in our slip and fall case, after Martha proves each of the elements in her case, Jane asserts a defense called “assumption of the risk.” She wants to prove to the jury that just before Martha climbed to the porch, Jane told her to be careful because she had not had a chance to pick up the toys her son had strewn about. If Martha acknowledges that but continues up to the porch, she assumes the risk that she could step on a toy and hurt herself.
Just as Martha has to prove her case by the preponderance of the evidence, so too does Jane. But if Jane is successful, her affirmative defense will win over Martha’s original case.
If you’ve been injured, take advantage of the years of experiences and compassionate care of the attorneys at Russell & Lazarus, APC. Contact us today to learn how we can help you protect your rights.
Discovery is the legal process that allows each party to a lawsuit to ask the other parties for information that is related to the case. During discovery, both parties are required to show the other side evidence they plan to use during trial. Our Newport Beach injury lawyer can guide you through this process.
The discovery process is meant to encourage parties to settle their disputes before trial, help each side prepare their case based on fair access to information, and prevent unfair surprise in court. Courts have stated that the ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed.
To further this end, parties may obtain discovery regarding any matter not privileged (attorney-client, doctor-patient, etc.) that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
Generally four types of formal discovery tools are frequently used in lawsuits. They are depositions, requests for admission, requests for production, and interrogatories. In addition, some states and the federal courts use initial disclosures or requests for disclosure.
Disclosures permit a party to obtain certain standard pre-approved basic information from another party. The responding party must provide the information requested, and cannot object or claim a privilege to shield the information from discovery.
In a deposition, a party’s lawyer conducts live questioning of the other party or a witness to the dispute. The person being questioned must answer under oath, and the answers are transcribed by a court reporter for later use at trial. This person is called the deponent. Sometimes, the deposition is also videotaped. If the deponent cannot testify at trial, the questions and answers might be read to the jury as evidence. If the deponent does testify and gives different answers at trial from those he gave during the deposition, the questions and answers can be used to show the jury that the witness changed his story.
In a request for production, one party asks the other for physical evidence, generally documents, related to the accident or occurrence. Requests for production are usually used to gather pertinent documents, such as contracts, employment files, billing records, medical records, or financial information. However, these requests can also be used to inspect physical objects or property.
Interrogatories are written questions one party sends to the other to be answered under oath. The answers can be used at trial in the same way as deposition answers — to challenge a party who changes his or her story later.
In a request for admission, one party asks the other party to admit or deny that certain facts are true or certain documents are genuine. These requests are generally used to narrow the issues for trial.
Many times a client provides his or her lawyer with a mountain of documents, many of which have no real relevance to the case. Other clients produce only a fraction of their documents, notwithstanding counsel’s request to make full disclosure. This usually occurs as a result of oversight, or the client not being prepared to spend the time or effort to complete a thorough search. Failure to make full production at the outset invariably results in increased costs and delays down the road. Moreover, if a party fails to respond to another party’s request or fails to adequately respond, the requesting party may file a motion to compel responses and go before the judge. This could result in monetary fines and other sanctions.
In general, a party has thirty days to respond to any of these requests. The lawyer usually sends the requests to the client upon receipt, and asks him or her to do their best to answer it on their own. This often provides the lawyer with information that may not have been provided if the lawyer guides the client through the process first. Then the lawyer will work together with the client to come up with the final product.
Discovery is a very important part of the litigation process. In order to win the lawsuit, a party must have more than speculation or opinion to prove or disprove the allegations in the lawsuit. The most compelling and credible evidence is physical evidence that supports the party’s allegations. In addition to physical evidence, testimony from witnesses can help corroborate the party’s allegations.
Through the discovery process, the attorney can ascertain the strengths and weaknesses of his client’s case and adjust the legal strategies and tactics to make his client’s case stronger. Furthermore, knowing the strength of the opposing party’s evidence is vital in deciding if it is in the client’s best interest to settle the case prior to trial or proceed to trial.
We believe in holding your hand closely during the discovery process. If you want to discuss your case with a Newport Beach injury lawyer at Russell & Lazarus APC. We can help.
That’s something you may want to know the first time you visit a Newport Beach personal injury law firm. Well, it’s impossible for any Newport Beach personal injury attorney to answer that and predict the future because so many factors go into the case before a date for a trial is set.
Before a date is selected, the number of cases already on the docket in your county or area will impact your date. In addition, the number of judges in your jurisdiction affects how fast those cases are scheduled. Your Newport Beach personal injury law firm will work to finish discovery, interrogatories and depositions, but both sides need to complete these items before the case can move forward. In some areas a criminal case will have scheduling priority over a personal injury case. Finally, even whether your Newport Beach personal injury law firm has other trials pending will also be considered.
Your lawyer can give you an estimated date based on all of those variables, but it’s important to note that it can take under a year to several years depending on your specific situation.
The good news is that it won’t be a surprise. You’ll have plenty of time to prepare and be notified in advance of your trial dates, but be prepared for delays or rescheduling. You need to be flexible and understand that all the factors listed and more go in to the schedule for all the parties involved.
To set up an appointment and get your questions answered, call Newport Beach personal injury law firm, Russell & Lazarus APC today.
Facing a trial in your injury case can be an overwhelming experience. Let a Newport Beach personal injury attorney explain the process to you.
As the injured party, you are the plaintiff. Under Newport Beach personal injury law, your lawyer will go first. Your Newport Beach personal injury attorney will give an opening statement and call witnesses.
Once your case has been presented, Newport Beach personal injury law allows the defendant to put on his/her case. The defense lawyer will call witnesses, and your Newport Beach personal injury attorney will cross-examine them.
When both sides have finished calling witnesses, the judge will allow closing arguments to the jury when your case (and the defense’s case) is summarized. As a plaintiff, your attorney can also rebut the defendant’s closing argument.
The judge will then instruct the jury about the law and what their duties are in deliberating.
Waiting for the jury to decide your case may be one of the more nerve-wracking times. The jury can take hours. When the jury has decided, the judge will inform your lawyer, and you will hear the jury’s decision in court. Your lawyer can answer your questions about the verdict.
Put the experience of a Newport Beach personal injury attorney to work for you. Call the offices of Russell & Lazarus APC today.
You and your witnesses at the deposition will be subjected to a plethora of complex or vague questions by the opposing lawyer. To avoid being caught off guard by the opposing attorney’s aggressive questions, you should educate yourself on the following 13 tactics for answering complicated questions in court.
Social media is a wonderful way to connect with others. But sharing too much can negatively affect your personal injury claim.
People often post about their personal lives — everything from their thoughts, feelings, and everyday occurrences. However, if those activities include an accident that leads to a personal injury claim, sharing detailed information about your injuries or the events that caused the accident can have negative consequences.
If you or a loved one were in an accident that caused injuries, you need an experienced attorney to walk you through the personal injury claims process. Call Russell & Lazarus APC today.
When you’re injured due to someone else’s actions, it’s natural to want to update friends and family on social media about your experience and condition. However, even a simple post commenting that “okay” can come back to haunt you. It’s common for an insurance company to use evidence from a social media post against injury plaintiffs.
If you make a post about your condition and later make claims in your personal injury claim that do not match those social media posts, the defense may use that information against you. Most people want to comfort friends and family by telling them that they are “doing well.” However, those claims are likely in direct conflict with your claims of loss in an injury claim.
Defense attorneys may also use posts about your location against you. If you post that you are enjoying vacation in Hawaii, but later state in your injury claim that you are suffering loss of enjoyment of life, your claim may be questioned. It would be difficult to explain that you were able to take frequent weekend excursions with friends, but suffer great mental anguish. It’s best to just avoid posting about your activities while your personal injury claim is still active.
Although you may have your social media settings set to private, your posts are typically considered “public.” Because your posts are broadcast to a large number of people, they are considered “public record” in most courts. They are available for viewing by friends, family, and anyone who has access to social media. Thus, your posts can be used as evidence in court.
Even if you have your settings private, your friends may not. If your friends tag you in posts indicating your activities and condition, those posts may be readily available to the public. It’s impossible to be completely private on social media.
If you sustained injuries because of someone else, you should restrict what you post on social media. You can still connect with friends and family. But you should refrain from posting about your everyday activities, physical condition, or mental status. If you find it difficult to avoid doing these things, you should consider disabling your social media accounts while your injury claim is ongoing.
Never talk about your injury claim online. Although you may be tempted to make posts to keep your family updated or vent about the defendants in your case, avoid it. If you make any posts related to your injury claim, it will likely be used in court.
If you or a loved one sustained injuries due to someone else’s reckless or negligence, you likely have many questions about what to do next. We can help with the personal injury claims process, including how to handle social media. Call Russell & Lazarus, APC today to learn more.