Medical liens can cause delays in your receiving your settlement check at the end of negotiations or a trial. This usually happens when you do not have final demand from Medicare when the adjuster is about to issue your settlement check. Extracting information out of Medicare is never easy, but you can remain organized and start early to prevent delays. Here are some steps you can take for handling medical liens effectively.

Remain Patient

Review the benefits you receive from Medicare, and focus on the rules regarding the lien. Provide your personal injury lawyer with copy of your Medicare card and any other information or correspondence you have received from Medicare. The correspondence could include letters from Medicare, medical bills, and statements explaining benefits. Medicare does not provide information quickly, and usually delays the process. Once you have accepted this, you will be less stressed.

Remember, this is a government operation. These are a bunch of bureaucrats. They are neither the hardest working people nor often the most skilled. If they wanted to work hard they probably would not be working for the government.

Doing What You can Do

Do not delay your initial notification to Medicare’s COBC (Coordination of Benefits Contractor). The COBC will be opening your file with MSPRC (Medicare Secondary Payor Recovery Center). Once your case is opened by COBC, you should be receiving a letter of Rights and Responsibilities from the MSPRC, along with a cover page that has to be used for all future correspondence. This letter will provide an outline of the process.

It is important to send to the MSPRC, Proof of Representation, without which no action will be taken on your case. You can send a copy of the retainer agreement with your lawyer, provided:

  • The agreement is on the lawyer’s letterhead or has an attached cover note printed on letter head
  •  It has your name, Medical Health Insurance claim, and your signature
  • The agreement is countersigned or signed by the lawyer and dated
  • HICN number should be printed on top of the claim form

 

Hearsay can be any statement that is not made in court, but presented in the court for proving the truthfulness of the information in the statement. It can be oral testimony or written documents. The main characteristic of hearsay is the gathering of information from one person to another, where the first person does not have direct experience of the object, condition, or event mentioned in the information. Due to such nature of hearsay, this type of evidence is not permitted in personal injury cases.


Rationale
This can be frustrating for both sides at times because sometimes this can just fall under the category of common sense. But you are supposed to not use this information because it cannot be proven. It can also be damaging if someone is able to have their statement stick to the case but they really do not know what they are talking about. So this is where hearsay comes in and does some good.

If you are relying on unproven or unsound information to win your case then you need to either change your frame of mind or work a little harder because the court is not going to be too impressed with your case if that is the case!

Strategy
For instance, John and Robert’s cars are involved in an accident that has injured John. At the trial, John’s lawyer calls Peter as a witness, who testifies that Robert’s friend told him that Robert was late for an appointment at the time of accident. In this instance, Peter’s statement can be considered hearsay, because Peter did not have any direct knowledge of Robert being late for an appointment. However, it will not be hearsay if Peter’s statement is not being used for proving that Robert was running late.

Even though hearsay evidence is generally not admissible in personal injury cases, there are certain exceptions. There are about thirty exceptions to hearsay rule, and most common ones are:

  •  Impressions: The impression that the declarant experienced while making the statement, for instance, “Robert appears angry”.
  • Utterances in an Excited State: These are statements made by the witness while being in an excited or stressful state during a startling event.
  • Declarations to Prove State of Mind: Statements made by the declarant can be used to prove the person’s state of mind at the time it was uttered. For instance, when Robert shouts out “I am Einstein”, it can be used to prove Robert’s unstable mental condition.


Two Barriers to Pass
When a person testifying makes a hearsay statement and the opposing lawyer does not object to it then it may be admissible, unless the judge rejects it. 

Testimony provided by expert witness is not free, and their fees can add to the cost of the case considerably. However, a thoughtful and well-developed opinion of an expert can be the turning point in litigation, especially in personal injury cases. Expert witnesses are particularly required in cases where complex medical or highly technical or engineering issues are involved. Therefore, for bolstering your claim you might need the help of a specialist doctor, scientist, or an engineer.

Who is this person?
For an expert witness to be effective, it is important to establish the credentials, education, and overall expertise of the person in the concerned topic or subject. At the trial, the expert witness will have to provide information regarding his or her education, credentials, background, experience in the field, current profession and so on.

The opposing lawyer will try to poke holes in the credibility of the expert witness and whether he or she is qualified enough to address the topic. Hence, even if the person is an expert in the field, he or she should be able to counter the attack of the opposing lawyer by answering effectively to all questions.

Retained and Non-Retained Expert Witness
An expert witness who is retained will be an expert who does not know the party before the case was filed, and is engaged mainly for the purpose of creating a report and providing testimony at the trial. On the other hand, a non-retained expert witness would have been involved with the party prior to the case, and his or her expert opinion will be founded on information collected during their relationship.

A marvelous example of non-retained expert witness would be the physician of the victim, who has been the person’s physician for a long duration before the current case. 


If you have suffered an injury due to negligence or carelessness of another person, you can claim compensation from the at fault party. You need to seek legal counsel for determining the viability and value of your case, and for negotiating or fighting your case at a trial. Most personal injury cases do not go to trial and the settlement is sought through negotiations. This approach has quite a few benefits that are discussed here.

Per Hour is Costly
Most lawyers who take up and accept personal injury cases, charge contingency fees, which will be a percentage of the settlement amount. However, the percentage for pretrial settlement is lower than the percentage charged, once the trial starts. The defendant on the other hand will have to hire a lawyer on an hourly rate, which can be extremely costly in the end. $400 per hour, for instance, adds up real quickly.  

However, attorney fees are not the only costs in a personal injury case. There will be court fees, documentation charges, cost of preparing props, and cost of retaining expert witnesses. When you consider all these costs, out of court settlement is a much cheaper alternative, especially when the case can drag on for a long time.

This is why you your attorney who accepts the case can only be eligible for a payment after you are paid. In other words, they only win if you win. If you lose the case then they know since you are not being paid anything, how can they collect from you when they know you are already in the hole? They know from the beginning that they have to win the case to receive any type of financial payoff.

A Jury’s Decision is Unpredictable
It is almost impossible to predict if the jury will settle in your favor, and what is the amount of compensation they are likely to grant. For a plaintiff, the jury might dismiss the case altogether and not award anything or award a very small amount. For the defendant, the jury could award a huge settlement, depending on the skill of the plaintiff’s lawyer and strength of evidence. Hence, a jury decision can go both ways, and can be quite unpredictable for both parties.

This is why both sides prefer a settlement to avoid this gamble.

Court Procedure is More Stressful
Once the case goes to trial, the defendant and the plaintiff will have to undergo examination and cross examination, face character defamation and many other unpleasant things, which make the procedure stressful and worrisome. On the other hand, negotiations are held in a relatively calmer way where there is less stress and animosity in the air. 

Punitive damages as the name suggests is intended for punishing the guilty party. However, these damages are rarely awarded in personal injury cases, unless the court decides the behavior of the defendant was especially reprehensible that deserves punishment. Since these damages are punitive in nature, they are not associated with any tangible injuries or damages. These damages are not meant for compensating the victim for any particular loss; however, the victim is the one who receives the amount of the awarded punitive damages.

Some Tangible Reasons

In most states, punitive damages are awarded in personal injury cases where there has been gross negligence or intentional misconduct. In some states, acts of deceit, malice, or recklessness are also considered grounds for awarding punitive damages.

Wanton Disregard

An act is considered grossly negligent, when it is done recklessly, and with indifference or with conscious disregard to the safety of others. In comparison, general negligence is disregarding the duty of acting with reasonable care. However, in gross negligence there is an attitude of indifference or recklessness.

Blatant Aggression
The rationale behind awarding punitive damages is to deter such repugnant or reprehensible conduct amongst people. For instance, a driver intentionally sideswipes another car, because the other car tried to cut him off on the road. In this case, the driver has acted with intentional malice and is not just violating the usual duty of care. In such a situation, the victim should not only be awarded compensatory damages for his injuries and property loss, but also punitive damages, so that the driver is punished for purposefully causing an injury.

In certain states, there is a cap on awarding punitive damages in personal injury cases. For instance, in Florida, the court cannot award punitive damages in excess of three times the compensatory damages awarded to the victim or half a million dollars, whichever is higher. 

Personal injury claims and the application of concerned laws can become quite complicated and sensitive. The victim who has suffered serious injuries will not only face added medical expenses but also suffer physical pain, emotional trauma, and loss of income. Therefore, it is paramount to receive fair compensation from the party at fault, as soon as possible. Personal injury laws differ between states, and here is a short summary of what you can expect in Arkansas.

Where and When You can File a Personal Injury Claim

Usually, the personal injury case has to be filed in the same jurisdiction where the accident has occurred. This means the case will be subject to the district laws of that area. In Arkansas, the victim is given two years to file a personal injury case, and in case of medical malpractice, the statute of limitations is three years.

The law provides a long time to file a personal injury case because a victim who is seriously injured will know the full extent of his injuries and their implications in his life only after a certain period has elapsed. However, the victim may not wait that long, since medical expenses and lost wages can drain your finances with brevity.  

What Damages can You Claim?

In Arkansas, the victim can claim compensation for

  • All medical expenses related to the injuries suffered in the accident, including cost of medical care at home
  • Lost income and potential loss of future income
  • Compensation for pain and suffering 


The state laws also allow a jury or court to give a verdict awarding punitive damages along with the compensatory damages. However, for punitive damages, it must be proved that the defendant was exceptionally negligent, indifferent, or willfully caused the accident.

Time to Send a Message

Personal injury cases in Arkansas can be resolved through a mediation process, with a third party acting as the mediator. If negotiations and mediations fail, the case goes to trial and the result here is unpredictable but if you believe in your case and your attorney is supporting you then perhaps this is the route to take. If the other side is being delusional and obtuse they have the most to lose.

 

Unlike many other law areas, personal injury laws are unique. For instance, criminal law is based on penal codes; tax law is based on the federal tax code. However, laws governing personal injury are developed in quite a different way. The main body of personal injury law has developed through decisions of past court cases, which is referred to as legal precedent.

Further Authority Provided by State Statutes and Legal Treatises

Apart from legal precedent, the authority of personal injury law is based on state statutes and legal treatises. Most states in the United States have codified personal injury law for their jurisdictions, which are called statutes. On the other hand, legal treatises are authoritative texts or books written on certain topics or subject matters by legal experts. However, even with state statutes and legal treatises, legal precedent will be the main factor used in deciding most personal injury cases. 

Asserting Position through Legal Precedent

Most personal injury attorneys use legal precedent for asserting their legal stand in their cases. A prior case law can be extensively used for strengthening the case, and can be stated during negotiations or during formal proceedings of the court. For instance, during negotiations for a personal injury settlement, the adjuster, the counsel, or one of the parties involved will often refer to the decision of a similar court case in the past where similar issues were present in the case. A case law is often cited for advancing the party’s position on issues that involve damages or proving fault.

Disclosure of Case Laws that are Favorable and Unfavorable

Obviously, the party will be citing a case law that is favorable to their legal position on the issue. However, ethical requirements and rules of court require disclosure of unfavorable case law as well, for certain contexts and situations. You just cannot ignore legal history just because it does not assist you in your case. That would be irrational and legally ignorant.

The other side may in turn even prevent some cases that are deemed ridiculous to the court in the first place. If you know that legal precedent and perhaps logic does not suit your case, then this is a case that perhaps should not see the light of day. You may want to settle out of court if you can convince the other side that settling for a low figure is the right move to make to put this case behind them. This is the time to be very humble though because if this does not work out taking this case to court may be a quick victory for the other side.  

And then you and your legal representative realize everything was for naught and you are compelled to walk away with nothing to show for your efforts. Not even gas money! 

Spinal cord injuries are quite serious, since they can cause a range of traumas and disabilities with the victim. Hence, the type of spinal injury greatly influences the settlement in personal injury case. Here are the main types of spinal cord injuries, and the way they will influence the settlement.

Complete Cord Injuries
These type of spinal cord injuries are the most serious where the spinal cord is severed in two. This will result in quadriplegia or paraplegia, where there is total absence of reflex, sensory, and motor activities below or around the injured site. The settlement amount will depend on the extent of disabilities and the effect it will have on the earning abilities of the victim.

Central Cord Syndrome
In this injury, the central portion of the spinal cord is damaged, and the upper sensory and motor functions are more affected compared to the lower. Seriously injured victims, might be able to move their legs, but their arms might become immobile. The settlement is significantly influenced if there is paralysis.

Incomplete Spinal Injuries
Incomplete spinal injuries include anterior and posterior cord syndrome. In anterior syndrome, the front portion of the cord is damaged, resulting in limited paralysis above the site of the injury. Victims might be able to regain certain amount of mobility, but they will not be able to sense temperature or pain, which can increase the settlement considerably. In posterior cord syndrome, most victims are able to retain their sensory and motor functions, but lose the ability of perceiving fine touch and body parts positions.

Damages

Several different types of damages can be included in spinal cord injury settlements:

  • Cost of medical expenses and estimated future medical expenses
  •  Therapy costs
  • Cost of in-home medical, health, and assistance services
  • Loss of income and estimated future income loss
  • Pain and emotional trauma

 

When it comes to litigation - the process of taking legal action to bring a lawsuit - these proceedings can take place in either state or federal courts. Although the vast majority of personal injury cases are handled in state courts, there are some cases that can be tried in federal court. A federal personal injury case is unusual because it must meet a specific set of criteria.

There are two scenarios in which you can file a personal injury case in federal court:

1) Diversity of Citizenship - To file in federal court under this criteria, the plaintiff and defendant must have different citizenship; that is, if they are citizens of different states within the United States, or if one or both of them is a citizen of another country, then the federal courts would have jurisdiction there. Under this condition, the amount of damages must also be high - with the plaintiff claiming $75,000 or more in damages. Both of these conditions must be satisifed in this scenario.

2) Federal Rule - The case might also be tried in federal court if it's an issue of federal law. For example, injuries that a worker experiences while working offshore, under the Jones Act, or while working on a railroad, under FELA claims, might qualify as a federal rule scenario. It may also apply in other situations.

The above criteria help determine whether a personal injury case can be filed in federal court, but that does not necessarily mean that it should be. Federal court litigation is notoriously complex, and may not be in your best interest. If you are the plaintiff and a defendant files to remove your case to federal court, this may be because the defense sees a distinct advantage to proceeding in federal court. In these cases, it's vital to hire an experienced, trustworthy personal injury attorney to help negotiate, navigate the paperwork and filing procedures, and translate legal jargon.

 Catastrophic injuries can be the outcome of virtually any accident. They could result from someone’s willful, negligent conduct which would form the basis of a civil suit. Or they could be work-related in which case the issue becomes a worker’s compensation claim. A catastrophic injury could emanate from a single event like an explosion or a fall, or it could be the outcome of repetitive injuries like those suffered by professional sports persons or others in highly physical-intensive jobs such as those in the construction industry. Fairly inconsequential events such as mishandling an injury could also turn it into a catastrophic injury as in medical malpractice lawsuits.

 

Serious Situations

 

Other common accidents that lead to catastrophic injuries are vehicle accidents, slip, trip, and fall accidents and construction accidents. The outcome could be spinal cord damage, brain trauma, head injury, loss of hearing, sight, or mobility. Other causes are accidents from an explosion, taking a dangerous prescription drug, or exposure to toxic chemicals like lead paint or asbestos.

 

Life Altering Events

 

An injury is described as catastrophic when it is devastating, permanent, and has a deeply disturbing effect on the victim and victim’s family. Unfortunately, in many cases, the effect of an injury does not become apparent until after a few months, or even years have elapsed. Victims suffering from a catastrophic injury might have their lifespan shortened or be forced to endure a lifetime of pain and suffering with huge costs related to their disability.

 

Building a Formidable Case

 

If you or someone close to you has suffered a catastrophic injury, then call a law firm which specializes in catastrophic injury cases. An injury lawyer will let you know if the nature of your injury qualifies you to bring about legal action for a monetary claim for damages. You might be eligible for compensation for medical treatment and many other benefits. Remember that catastrophic injury claims are time sensitive and subject to a statute of limitations.

Summary judgment Arkansas personal injury

What's a summary judgment?
If you've ever watched an episode of Law & Order, you've probably heard a lawyer use the term "motion." In legal terms, a motion is a request filed with the court that asks for a ruling on a specific issue. Motions can be filed at any point during court proceedings and can range from motions for dismissal to motions for a new trial. Motions can be filed by the plaintiff or the defendant. In the case of a personal injury claim, it's more common that the defendant would be the one to file a motion for "summary judgment." A summary judgment is used to avoid unnecessary trials. What does this mean for you as the plaintiff? If granted, a summary judgment can end the case before it begins. This means that your case will not be tried by a judge or jury. 

Why would the defense file a motion for summary judgment?
The purpose of a trial is for a judge or jury to determine the facts of a case and, then, make a ruling based on those facts. The defense might argue that all of the facts are known and both sides accept them to be true. They might claim that the defendant has no liability to you for the injuries and damages you received, or they might argue that you haven't provided any evidence of injuries. Based on that argument, they ask the court to forego the hassle of a unnecessary trial and grant the motion for summary judgment. 

In order to win the motion, the defendant would have to prove several things: 

  • No facts of the case could be reasonable disputed (in other words, you couldn't argue that any of the facts aren't true)
  • Any reasonable court considering these facts would rule in favor of the defendant who filed the motion 

These motions are certainly not taken lightly. If the defendant files a summary judgment motion, the good news is that the court will consider all available evidence in the best light possible for you, the plaintiff. Summary judgments are not granted quickly or flippantly, so don't worry that a court would grant one without overwhelming evidence in its favor. 

How can I avoid a summary judgment?
You may have noticed that the attorneys at Taylor King Law really emphasize the importance of documenting all aspects of your case and gathering as much evidence as possible. This is one of the most important ways to guard against a summary judgment. Your attorney will also be sure that you follow all the proper legal procedures, notifying health insurance companies, documenting medical bills, and filing the proper paperwork.

As you discuss your case with your lawyer and case management, be honest. You may be tempted to tell your story in a way that puts you in the best possible light, but this will not be good for your case in the long run. Avoid embarrassing backtracking and corrections later in your case by telling the truth from the very beginning.

If the defendant does file a motion for summary judgment, your attorney will have a chance to oppose the motion. You'll need to provide evidence, such as depositions, police reports, eyewitness testimonies, or medical records, that work in your favor. 

Can I file a motion for summary judgment as a plaintiff?
In a word? Sure. While it's more rare in personal injury cases, there are times when plaintiffs can benefit from filing a motion for summary judgment. For example, in a case heard by the Court of Appeals of Tennessee at Nashville, the plaintiff was injured while helping lift a wheelchair-bound patient when the other paramedic did not follow the proper procedure. Because none of the facts were in dispute, and the paramedic admitted in a deposition that he had violated procedures, the court granted a summary judgment to the plaintiff.  

Taylor King Law 

If you have questions about the possibility of a summary judgment in your personal injury case, we recommend hiring a lawyer who can help address your concerns. Call Taylor King Law today at 1-800 CAR WRECK for a free consultation about your claim. 

A deposition is one of the pre-trial procedures, where the parties gather information from each other. It usually does not take place in a courtroom, but the parties may be sworn in, just like if they were giving testimony before a judge. In most personal injury cases, a deposition is mandatory, where the judge will issue subpoenas for the defendant, plaintiff, and witnesses to attend the deposition.

Speak the Truth

In a deposition for a personal injury case, usually the lawyers of the defendant and plaintiff will ask questions to the witnesses that reveal important points pertaining to the personal injury claim. The witnesses have to respond accurately and truthfully, as they are under oath. The whole deposition session is recorded and the copy can be submitted for using as evidence in the trial.

Feelings are Secondary to the Truth

In a personal injury deposition, each side will try to obtain all the information they can, about the injury. Hence, the questions can get intensely personal. Here are some of the usual questions asked at a deposition of a personal injury case:

  • Have you made legal claims before, such as workman’s compensation claim, property claim, insurance claim, and so on.
  • Are you employed, where do you work and as what?
  • What kind of illnesses and injuries have you suffered before in your life?
  • Have you ever been convicted of a crime, or do you have a criminal record?
  • Where were you going before the accident occurred?
  • What was your mental state, just before the accident occurred?
  • Who was travelling with you at the time of the accident?
  • Did you violate any traffic laws just before the accident occurred?
  • Where were you injured?
  • What did you do, immediately after the accident took place?
  • What was the extent of you injuries?
  • Was the injury existing before the accident, and if so, did the accident aggravate the condition?

A deposition is an important procedure that takes place before the trial in a personal injury case. Most depositions take place in the conference room of a law firm, and there is no judge present. However, a court reporter will swear in the parties who are giving the answers to the questions asked.

Determining the Truth

What is said during a deposition plays an important part in the trial, and the statements recorded can be used as evidence. Therefore, it becomes integral for the victim to be prepared to answer questions accurately and truthfully during a deposition. If you are the victim, here are a few tips that will help you in a personal injury deposition.

Required Materials

First consult with your attorney, and inquire about who will be present at the deposition. Ask whether you are required to bring along any documents or medical records. Depositions can take a long time, and hence find out how long the session will last and if there is a time limit.

Suitable Preparation

The other aspect of being ready for the deposition will be how you present yourself and how you answer the questions. Here are a few points to consider, so that things go in your favor at a deposition:

  • Groom yourself properly and dress well.
  • Answer questions truthfully, and make sure you are speaking loudly and clearly.
  • Deposition is basically a question and answer session, and it is not a platform for you to air your opinions or make small talk. Hence, give precise answers, without diverting from the topic.
  • Do not be in a hurry to answer. Listen to the full question, and take time to collect your thoughts. If you feel, you have not understood the question fully then ask for an explanation. 
  • Request a break when you need one, and it is better not to talk off the record during the break.

Mediation is one of the most important parts of personal injury case, and it is usually ordered and endorsed by the court. Mediation is a crucial stage where there is resolute or strong possibility of a settlement. Lawyers of both parties will be skilled at negotiating, but usually the plaintiff is clueless about the procedure. Therefore, it is important to prepare the victim for a mediation session.

First, before the mediation takes place, the lawyer should explain to the victim what the mediation process is about, and what it seeks to achieve. It is important to talk in a compassionate tone, as the victim might be hurting and there might be lot of emotion involved. The lawyer should not only validate these feelings but also attempt to communicate how much compensation is going to be possible under the justice system.

All that Hard Work

The plaintiff should also understand that if they have gathered enough evidence this process should go their way. This is why you are supposed to sort of build your own case and work with your attorney so that you are fully prepared for this day. You may not have been able to hire experts to work this case as if you had the resources to do so but if without that much funding, with a basic smart phone and camera you could and should have some solid evidence supporting your claim.

Treat People with Respect

It also helps to be patient and cordial with people. Screaming at people at the scene of the incident is a turn off. Ordering people to stand by you and to help you piece together what happened is just not going to work. Even people that would have normally been motivated to help you out would not be interested in helping you out any more because of your behavior. No one wants to see a jerk get away with something but if you are not affable and polite to people they may not care about the status of your case. You could become the jerk to them and some witnesses could now just not care either way how the case goes.

Many victims have high expectations about what they should receive for their pain and suffering, but in actuality, it is more of a mathematical calculation based on the medical costs, and loss of income. The victim should be apprised of common practices used for calculating compensation for pain and suffering so that there is no over expectations or anger.

No Embellishment

The next part is carefully preparing the victim to present his or her side of the story. During mediation, the victim will be face to face with the defendant, and this could bring out emotions or anger. The victim should know that he or she is not required to, and should not answer any direct questions. The defendant’s lawyer might try to cross-examine the victim, which should be prevented at all costs during a mediation. However, go over the story and prepare the victim to state what happened clearly and in a logical sequence. It is important that the victim stick to what is practiced and does not add anything on his own during mediation. 

Mediation sessions are held so that the case can be settled without going to trial. It is important to understand, the people who will be present during mediation, their roles, and how they can influence the proceedings.

Plaintiff

The victim, who has filed the personal injury case, will have to be present in person during mediation. The session can take many hours and hence the plaintiff will have to take necessary leave from work, arrange for childcare, and so on.

This is why the punishment should be tough enough because all this matters. Time matters. This defendant has taken part of your life away. They should be punished for general principle and because they have taken a section of your life and wasted it. Compensation should cover all of this; everything that you have gone through.

Have they apologized? Does it even matter! They should have been contrite before they totally screwed up.

Attorney of the Plaintiff

The attorney of the plaintiff will be present throughout the mediation process, will be arguing the case, and answering questions of the plaintiff.

Defendant

The defendant is rarely required to attend mediation. However, sometimes the mediator might want to evaluate the defendant or ask certain questions pertaining to the accident.

Attorney of the Insurance Company

In a personal injury case, usually an insurance company will be paying the claim. The lawyer of the insurance company will be present at the mediation and will keep contact with the insurance company by phone. This lawyer will be mainly negotiating an amount and trying to settle the case.

Representative of the Insurance Company

Apart from the insurance company’s lawyer, sometimes a representative of the company will also be present at mediation. This representative will usually have the power to make the final decision about the settlement amount. He will have full knowledge about the case and will know the details about the accident and the injuries suffered by the victim.

Mediator

The mediator will help in settling the case and is impartial to both parties. He will start the mediation process by introducing the two parties and explaining the process. He might ask the insurance company representative and lawyer to leave the room for some time, to discuss the case with the plaintiff and his attorney.  

Not only are personal injury laws complex, but they can also vary between states. Here are certain important facts about making personal injury claims and filing such cases in Arkansas.


Where and When to File the Personal Injury Case

Personal injury case is generally filed in a court whose jurisdiction covers the area where the accident or incident occurred, which caused the injuries. However, there are certain exceptions, and matter of jurisdiction could be subject to certain local laws as well.

Each state has a statute of limitations regarding when you must file a personal injury claim. The general rule is that the sooner you file, the better off you'll be. In Arkansas, the victim has two years to file a personal injury case from the date of the accident. In cases of medical malpractice, the person has three years to file a case. This period might seem long, but you need not wait that long if you want to correctly assess your damages.


What Damages can be Included in a Personal Injury Claim

The type of losses a victim can recover varies between states. In Arkansas, the plaintiff can include compensation for:

  • All types of medical expenses including cost of in-home nursing
  • Lost income, and expected loss of future income due to diminished earning ability due to the injuries
  • Pain and suffering
  • Apart from these, laws in Arkansas also allow awarding of punitive damages. However, in order to receive punitive damages, the plaintiff has to prove that the defendant willfully or wantonly caused the accident, or had total disregard for human life.


Comparative Fault State

Arkansas implements the doctrine of comparative fault, which means that victims can file personal injury lawsuits even if they are partially responsible for causing the accident. As long as the plaintiff's fault for the accident is less than 50%, he or she can file a claim. The jury might also determine the percentage of fault for each party during the trial itself.

Discovery is an important element of personal injury litigation process. Through discovery, the parties are able to gather important information for winning the case. There are usually four discovery types.

Requests for Production of Things and Documents

This consists of number of tangible items that a plaintiff might want to see. Such a list could include driver’s license and insurance policies in an accident case, or copy of establishment’s policies about dealing with dangerous conditions or spills in a slip and fall case. The list could also include request for pictures of the accident scene or pictures of the place where the accident occurred. The defendant is not obliged to create these items or documents. However, they must be produced if they are in defendant’s control, custody, or possession.

This is information you want to but you do not want to depend on the other side. They may have been honest people before but they know they are in some serious trouble and they may justify lying to you to keep their culpability at a minimum. They may get rid of some incriminating footage or paper work and say they could not find it or something else happened to that information.

This is why you want to have built your own case. You cannot depend on them. Most likely because it is against the law to destroy evidence in a case such as this they may not go down this road. If they are honest and show sincerity, you and the judge and so on will take this into account.

You may still be furious but your attorney will explain to you that this person is showing integrity and the mediator will see this. They will still face some damages that they have to pay but saying things such as “I could not find the sign in sheet” knowing that is a critical piece of evidence is only going to cause your attorney to work that much harder to prove them negligent and even personally endorsing a small cover up.  

If you cannot prove the cover up, you will have little sympathy for them in this case at all.

Interrogatories

Interrogatories process is a list of written questions asked by the defendant, which the plaintiff has to answer under oath. These questions usually relate to how the injury happened, or it could also be about matters concerning insurance or any other circumstances that could be connected with the accident.

Requests for Admission

This is a list of numbered facts that a party might present to the opposing party, who has to deny or admit to the statements. For instance, in an accident case, the plaintiff might ask the defendant to admit about running a traffic light. No facts admitted by requests of admission, require further proof during the trial.

Depositions

A deposition notice can be served to any person who comes under the jurisdiction of the court. This can include any person living, owning property, or working in the area where the court is located. One of the parties can request the court for a blank subpoena, and serve it to any person, which directs the person to appear at certain place and time, for answering questions that are related to the case. 

When negotiations with the insurance company are successful, it means you have agreed to a reasonable settlement offered by the adjuster, as payment for your personal injury claim. However, after verbally accepting the proposal there are a few steps you need to take before you receive the payment and the claim is closed.

Mailing Protocol

The first step is to send a confirmation letter that confirms the settlement amount that was offered to you. This letter has to be sent within 24 hours after agreeing verbally with the adjuster of the insurance company. You will need proof that the adjuster has received your confirmation letter, and hence you need send an extra copy for certification with a return receipt.

Verification

You need to keep this signed letter confirming receipt in your records. The confirmation letter can be sent by Certified RRR so that you have proof of mailing the letter and the date it was received by the insurance company. During this same time, you will be receiving a similar letter confirming the settlement amount from the insurance company.

The Release Form

After the confirmation letter, the insurance company will be sending you a release form within 14 to 21 days. Some insurance companies will send the settlement check accompanying the release form, which you are supposed to return after signing it, before cashing the check. Some companies will send only the release form and send the check when they have received the release form duly signed from you. In either case, you need to read the whole release form carefully.

Your Attorney should be Assisting You with this Paperwork

Even though mistakes are unlikely, you need to be sure what the form says and the things you are agreeing to, before putting your signature on the dotted line. You should especially be careful when your claim for property damage remains unsettled, since the language of the form might suggest that the property damage payment is included.

PTSD or post-traumatic stress disorder can occur in a victim who has suffered injuries in an accident. The victim can claim compensation for this disorder as part of the personal injury case or related insurance claim. However, PTSD is very difficult to prove without testimony of an expert witness, as it is a complicated mental disorder.

Outside Expert Analysis is Critical

According to the law, a fact issue that cannot be easily comprehended by the average juror requires testimony from an expert witness to provide an opinion or explain the fact in detail. In the case of PTSD the expert witness will be called to offer an opinion if the victim is suffering from the disorder or not.

A Team Effort

However, expert witnesses cannot simply come and testify that they are qualified to diagnose PTSD and then provide the diagnosis. The expert will have to provide an explanation to the jury, as to how a diagnosis of PTSD is made and whether the victim is displaying the same symptoms as a patient suffering from PTSD. In most cases, additional testimony from other expert witnesses will also be required to support the PTSD diagnosis, and such witnesses are usually called fact witnesses.

An Understanding

The main expert witness will not necessarily provide testimony about the victim having PTSD, but rather testify about the facts that have to be proven for establishing PTSD. Hence, there is requirement for fact witnesses, apart from expert witness, for establishing PTSD. Only when the expert witness is the treating therapist of the victim, fact witnesses may not be required.

The expert witness of the plaintiff must testify to the following for establishing PTSD:

  • The accident was stressful for the plaintiff
  • The victim has intrusive and recurring flashbacks, dreams, and thoughts about the incident
  • The plaintiff is avoiding places, things, and people that trigger such intrusive thoughts
  • The plaintiff suffers from anxiety, hyper activity, insomnia, or other similar symptoms
  • Important areas of the life of the victim is disrupted due to the symptoms

PTSD became famous in the 1990s but also when troops started coming home from Afghanistan and Iraq in the middle of the 00s. There have been shows on TV depicting this disorder in regards to a soldier returning home from war and not being able to assimilate back into society. If the disorder is bad enough, perhaps they should not be able to drive. This is what society is debating though and it is has a while to play out.

Deposition is an important part of the personal injury lawsuit. The plaintiff or victim is usually deposed, and if the victim does not appear honest during the deposition, the jury is unlikely to grant significant compensation. On the other hand, if the victim is sympathetic and honest, the jury is likely to grant greater compensation for pain and suffering.

Building Trust

The truth is highly important in any matter. If you are deemed untrustworthy you are probably not going to be successful in life. You have to promote and exude trust in any professional setting. When you want people to side with you and possibly award you with enough funds that could be somewhat life altering, you need to be honest and not embellish anything. If you are in the right, you have to trust that they will see this case through your eyes.

Being Nervous is Normal

Most victims will be stressed about how they can make a marvelous impression at the deposition when they are nervous and have to face a formal situation. However, nervousness does not matter, as long as the victims are direct and honest in describing what they have undergone due to the accident and the resultant injuries.

The lawyer of the insurance company will try to find out the victim’s version of what happened and how the injuries have affected victim’s life. The lawyer will also try to gauge how the victim will fare as a witness during trial. However, when you have suffered injuries in an accident and called for deposition, you need to provide facts in a precise and concise way.

This is not a Talkathon

A deposition is not a platform for you to make the insurance company understand fully what you have gone through or what you think about the driving skills of the defendant. The more you talk, the chances of revealing something that can be used against you at trail, increases exponentially. The opposing counsel will also try to elicit such statements from you, and hence, you need to only mention bare facts and stick to only what is being asked.

Even though you may not be favorably disposed towards the defendant or his lawyer, you need to keep calm and answer questions in a courteous manner. Juries are more inclined to award proper compensation to victims who are hurt rather than victims who display anger and discourteous behavior.

In personal injury cases, affirmative defenses can be partial or complete defenses, which affirm the plaintiff’s allegations, but present the facts differently. This means even if the incident happened as claimed by the plaintiff, the defendant does not need to pay any damages. Such defense could be based on the case facts or it could be based on the laws governing the case.

Here are some of the usual affirmative defenses based on the laws:

  • Wrong venue for the case or the jurisdiction of the court does not extend over the case
  • Expiration of statute of limitations, which means the case is not filed within the stipulated time from the date of the accident
  • The plaintiff does not have the legal right to file the specific case
  • Federal or state law has precedence over the plaintiff’s claim, which means the victim’s claim is preempted by certain federal or state law
  • The plaintiff had consented to the behavior that caused the injury or consented to bearing the injury.
  • The plaintiff assumed the risk of being injured, which means the plaintiff understood that there was risk of being injured. Alternatively, the plaintiff willingly undertook the act that he or she knew would cause injury.
  • The plaintiff failed to reduce or mitigate damages.
  • The plaintiff was acting in self-defense or in defense of another person or for protecting property.
  • The act of the defendant that caused injury was done in order to avoid greater harm.
  • Contributory or comparative negligence, which means the plaintiff was responsible in part for his or her injuries.
  • Nonparty liability, which means another party, was entirely or partly responsible for the injuries suffered by the plaintiff.

There can be number of affirmative defenses that are based on the facts governing the case. Some of the usual ones are:

If someone volunteered or paid to go on a white water rafting trip for instance and they knew the dangers then there is an issue there if they are subsequently hurt. It can certainly nullify the case if the so called victim signed their life away or signed an indemnification document. Anyone with a sound mind should know that floating down a wild river carries some risk. If the person does not have a sound mind, that is another issue.

Everyone Else Knew

It also does not help the victim if they were in a group of people and everyone signed the same paper work and knew what they were getting themselves into. Level 4 rapids can be quite dangerous and any mediator or court room is going to know this.

Generally, the amount you receive for your personal injury claim is not taxable under state or federal law. It also does not matter whether you have received the money through negotiations process, or by winning the case at a trial or through mediation. The IRS or the state cannot tax your settlement amount or the proceeds from the verdict. This is pretty rare in this contemporary America where everything seems to be taxed and the taxes are higher as well.

A Rare Occurrence

The amount received should be personal injury damages that can include medical bills, lost wages, pain and suffering, and loss of consortium. The part of the settlement that goes towards paying attorney fees is also not taxed. Your attorney will be grateful for that.

Back to Reality

However, there are certain exceptions to the rule. If you have suffered an illness or physical injury due to breach of contract and such breach is the basis of the lawsuit, then damages are taxable. Additionally, punitive damages awarded by the court will be always taxed.

If you are claiming punitive damages, or there is a chance of the jury awarding punitive damages, your lawyer should ask for separate verdicts for compensatory and punitive damages. This way you can easily prove to the IRS the part of the settlement that is compensatory and non-taxable, and the part that is punitive and taxable. This will make it much easier for your accountant or yourself depending on who normally prepares your taxes.

It may not be a big deal in May buy in March of the next year when you are tackling your taxes for the previous year you will be thanking yourself. The IRS has never been bigger and more eager to collect more revenue because of the nation’s problems. You do not want to be audited.

Physical Injury is the Difference Maker

Even compensatory damages that are non-taxable, pertain only to verdict or settlement of physical injury. If you are claiming compensation for emotional distress or discrimination at workplace, where there is no actual physical injury involved, the verdict or settlement will be taxable. However, if you are able to prove even a little amount of physical injury, you do not have to pay tax.

If you are making two claims, one relating to personal injury, and another that is not, make sure the claim for personal injury is larger. Also, verify that the settlement for personal injury is clearly stated separately in the settlement agreement. 

When you make a personal injury claim, there's no set time frame for negotiations and settlement offers. You need to consult your attorney, weigh in all the factors and make a decision regarding accepting or rejecting the settlement offer. In most cases, the initial offer is low, since the insurance company will be testing the waters. Some plaintiffs, desperate to settle their case, accept much lower costs without realizing that future medical bills and suffering may be still to come. Insurance adjusters know this, and count on some plaintiffs being willing to settle immediately.

This is why you need to notify and hire an attorney in a timely manner. This doesn't mean you should hire the first attorney who sends you a letter in the mail; rather, take the time to do some research, read online reviews, and speak with attorneys before making a decision.

In a typical personal injury case, the victim will demand a settlement in writing after taking into account medical expenses, lost income, pain, and suffering and so on. The insurance company may respond to this formal demand letter with a counter settlement offer, which is usually much lower than the demand. How the victim responds to this initial settlement offer will largely influence the eventual outcome.

Maintain Equilibrium – Maintain Your Emotions

If you are representing yourself and have received a very low settlement offer, you may initially feel anger and frustration toward the insurance adjuster. This is not the time for a hastily written, angry response! Take some time to calm down; don't make any contact with the company if you're angry. This simply won't help your case. Keep in mind that the initial offer is merely a starting point and the negotiation process has only just begun. Politely decline the initial offer, listing the reasons why this offer is not acceptable. You may refer back to your medical bills and treatment costs.

Before drafting this formal response, you could ask the adjuster several questions to find out why the offer is so low. The adjuster may not reply promptly, and you might have to wait patiently until the adjuster responds. The answers given by the adjuster will provide the points you need to cover in drafting your response. Make sure you respond formally in writing, countering each of the points made by the adjuster clearly.

It's important to note: If you hire a personal injury attorney, he or she will handle all of the negotiations for you. The settlement offers come directly to your attorney, who then contacts you. You can tell the attorney how you want to proceed, and he or she will either accept the offer or reject it and counteroffer on your behalf. Unless you have a legal background in negotiation, hiring a professional lawyer to represent you can significantly increase your settlement amount.

The most common question is how long a personal injury case takes to settle or to obtain a judgment. There is no fixed time line, and it depends on the complexity of the case and the time spent in the negotiations process. Complex cases can go on for several years, while common accident cases could take about couple of years to settle or close. To obtain an idea of the timeline, it is necessary to understand the different stages in a personal injury case.

No Rush; No Assumptions

The first thing that could influence the timeline is the duration of the medical treatment. Unless, you have a clear idea about the extent of your injuries, and the treatment involved, you cannot even calculate a correct claim amount. It is therefore necessary to have your injuries diagnosed correctly and undergo the treatment for the required time. If you are going to need ongoing treatment for an extended period, you have to figure out the expected future medical costs.

Tough Advice

Your lawyer will review your medical records and investigate various important aspects of the case. This in itself can take a few months, since gathering medical reports and calculating the cost of treatment takes time. Sometimes the lawyer after gathering all these facts might feel you do not have much of a case, and you do not have any chance of winning a lawsuit. At such a juncture, you might have to consider accepting whatever settlement the insurance company is offering.

The Final Step

If you have a superlative or formidable case, your lawyer will initiate negotiations. The negotiation period can drag on for quite some time, and if ultimately the negotiations fail, the case goes to trial. When the trial proceedings are initiated, there will be discovery process, depositions, and ultimately the case will be heard in court. Throughout this whole process, negotiations might continue, and there might be offers and counteroffers. Ultimately it will all depend on the decision of the jury and amount of compensation you are awarded.

Once this happens, there is not any going back and the negotiating process is most likely over with.

Once you have notified your claim to the insurance company, you will be assigned an adjuster who will be dealing with your case. One thing you should be clear is that the adjuster works for the insurance company and will try to minimize your settlement as far as possible. Dealing and negotiating with an insurance adjuster is not easy, and it would be best to consult a lawyer if your claim is substantial. However, here are two important tips for dealing with adjusters.

Be Polite and Respectful

Try to deal with the adjuster at a more personal level. For instance, you could use the adjuster's first name and talk a little about family life and so on. Mention that you appreciate the adjuster taking time to look into your case and mention the difficulties you are facing because of your injuries. An insurance adjuster will be dealing with about 150 claims at a given time, and it will not be helpful if you start being pushy or impatient. In addition, demeaning the role of the adjuster during your conversation is going to be highly counterproductive to your case. 

You can tell them that your attorney is going to deal with them and that they are on the way and/or have already been at your home or met with you in the hospital. You can shrewdly inform them that you know they are busy and that their caseload is heavy so you do not want to take too much of their time up. You can use their busy schedule and their case load against them but be sincere about it―this is not the time for sarcasm.

You and the insurance adjuster are already fundamentally on different sides, you do not need to make this chasm deeper or wider with attacks on their profession or person.

 

Be a Stern Listener

Initially the adjuster will spend some time explaining that your claim is high, and why your injuries do not merit such an amount. This is the usual rhetoric you are likely to hear from any insurance company, and therefore there is no reason to get upset. While the adjuster is explaining all this, there is no need to cut him off, or be impatient. Calmly listen to whatever he is saying, since this is the opportunity to know what the defense counsel is likely to present, if the case goes to trial. If your perceive weaknesses in your case, you can present your side of the story in better light after consulting your lawyer.

Discovery process is one of the steps before the trial, where the two parties get a chance to collect information for strengthening their claim and defenses. The process of discovery can occur formally and informally. However, both types are usually required in a personal injury case.

Doing Your Homework

Informal discovery happens before filing of the lawsuit, where there is simple investigation of the claim and finding possible defenses. The process could involve the client being interviewed extensively, taking photos of the accident scene, reviewing past history of accidents of the two parties, inspecting medical records, collecting relevant documents, interviewing witnesses, product research, and other investigations. Informal discovery process starts just after the claim is made, and is done mainly for evaluating the claim.

The Transition

Whatever transpires during an informal discovery will be used for preparation of the lawsuit. Once the litigation process starts, there are many restrictions on an informal discovery and it therefore paves the way for a formal discovery.

This is why you build that case and your attorney will spearhead this process. But your attorney will not be at the scene of the accident or when the injury occurred. Your case should start to be built the moment you realize something happened. If you are capable of taking pictures and grabbing a couple names and phone numbers from some onlookers who can support your claim and accusation.

If you can do this you can make life much easier on your attorney who you will most likely be calling within 1 to 3 days.

A formal discovery will commence after the litigation process has started. There will be a formal request for documents and information through court channels and the process will be governed by civil procedure rules. Formal discovery will usually consist of:

  • Interrogatories request, where questions will be asked to the concerned parties
  • Production of documents that support the claim or defense will be requested
  • Depositions where the party will be questioned by the opposing attorney under oath in the presence of a court reporter who will be recording everything

Whatever transpires or whatever information is gathered during formal discovery can be introduced during the trial as evidence.

Decision by an Attorney

Information gathered during informal discovery will help the parties to form their strategies for the formal procedure. Discovery forms the most important element of a personal injury case right from the start. Usually the lawyer, the one you call and choose to meet with, will determine whether to accept the client's case after an informal discovery.

When the personal injury claim is relatively small amount, many things change, and your chances of successfully negotiating a reasonable settlement are rare. Here are certain things worth considering while negotiating for small claims.

Insurance Companies will not Try to Avoid a Lawsuit

The insurance carrier will not have to spend much defending a small claim, compared to the off chance of a substantial verdict. For instance, the insurance company will be reluctant to pay a lawsuit cost of $7,000 for defending a claim of $12,000. However, the company will enable you to file the lawsuit rather than give the impression that they are afraid of litigation costs, especially when the claim is small. Therefore, threatening a lawsuit is not going to influence the insurance company enough to settle.

Adjusters will not Settle for More

Even though adjusters like to close files fast, they are not likely to do so, when they have to settle for more. Closing a file is quite desirable for the adjuster, since that would conclude part of his work, but he is not going to compromise on the settlement of a small claim just because it would be convenient to close the file. When the lawsuit begins, the file will be simply handed over to the defense lawyer or an attorney from the insurance company. Hence, the adjuster simply communicates with the lawyer, and does not have to do any hard work afterwards.

The insurance adjuster only has the authority to settle with a certain amount as well. If this is a serious case where thousands of dollars is involve, far passed $10,000 for instance, you may also be confronted by the insurance adjuster’s manager, perhaps the district manager. They want to make sure all their “i”s and “t”s are dotted and crossed, respectively, because this case could be sizeable. You would want to have an attorney working with you by this point.

Settlement has to be Justified

The adjuster or the supervisor has to justify the settlement figure to their superior before offering such amount or after making the settlement. Hence, the adjuster will be very careful, and will not offer a settlement that can be questioned later by a superior. Secondly, each settlement will have to be accompanied by appropriate justification and documentation in support of the settlement. Hence, in general do not expect a sterling or game changing settlement for a small personal injury claim. 

Personal injury cases include several different kinds, the degree and intensity of these will of course differ from case to case. An injured person can claim damages and also file a lawsuit depending on the nature of the personal injury. According to the law, the injured person can demand and attain compensation when another person/company is responsible for causing them harm directly or indirectly.

Automobile road accident injury cases

Automobile accidents are the most common personal injury cases. Road vehicle accidents often occur due to careless, negligent driving and can often involve breaking road traffic laws. If the vehicle driver is found responsible for causing an injury due to reckless driving, they can be held accountable after investigations for causing the personal injury.

Medical or health related injury cases

Medical accidents can occur when a doctor or healthcare professional indulges in some malpractice or negligence in taking required care of the patient, thereby causing the patient mental or physical injury. Medical personal injury cases require in depth medical research and expert testimonies, hence they have to be handled sensitively and carefully by experienced professionals.

Falling accident injury cases

Getting hurt due to a fall on a rented property or at work and being gravely injured can also lead to filing a lawsuit. However, the degree of the injury and nature of the fall will be taken into consideration. Property owners and companies are required to ensure safety measure for tenants and employees so that personal injury can be avoided due to negligence.

Character defamation injury cases

When a person is insulted or their character is attacked, it is known as defamation of character and can cause personal injury to their reputation due to false statements. In order to file a lawsuit, a person has to get proof that they have suffered a monetary loss due to the fake statements made about them. In the case of celebrities or public figures, the injured person needs to also substantiate their case showing intent of malice.

Assault and attack injury cases

In personal injury cases of assault, the biggest differentiator is that the injury is intentional and caused when one person is harmed by the other deliberately. These cases are also mostly tried as criminal cases and will involve punishing the criminal. A person can also file personal injury charges in order to obtain personal compensation. A lawsuit can also be filed for bite(s) by a pet dog that has caused injury to a person and compensation can be rightfully demanded.

Finding and hiring a suitable lawyer for your personal injury case is extremely important so that you are fairly represented. It is essential to have an initial meeting with a lawyer to decide if he/she can represent you well. Meet with the lawyer and discuss all aspects of the case upfront so that the lawyer can help you gain the maximum for your personal injury case. At the onset find out the representation fees the lawyer will charge you.

Lawyer’s experience & know-how

Get to know about the lawyer’s experience and knowledge in handling personal injury cases. Some of the questions that you need to ask your prospective lawyer include:

  • How many years of practicing law do they have?
  • How many cases of personal injury has the lawyer represented earlier?
  • Does the lawyer generally take up individual claimants case or represents insurance companies?
  • Has the lawyer ever worked with or against your particular insurance company?

Senior & junior lawyers for your case

It is necessary to know if a senior, junior paralegal or both will be working on your personal injury case. It is appropriate to get senior lawyers to handle important aspects and paralegals for their researching skills since this will also affect the time and cost of your case. Meet with all the lawyers who will be working on your case and give them a thorough background, hear their opinions and suggestions too. If you have any concerns about which lawyers handle which aspects of the case or any other queries, you should acquire some clarity in a one-on-one meeting with the lawyer.

Discuss settlement aspects

You will need to discuss with your lawyer the settlement you expect for your personal injury case. Your lawyer might also give you opinions as to how much your case is worth in terms of a settlement. It is not necessary that you agree with their opinion but the lawyer should be willing to take your approach and pitch for what you are comfortable with. In the process of the case, if you would like to change tactics, the lawyer will need to do so keeping your needs and requirements in mind.

Outstanding communication between lawyer & client

It is essential that lawyer and client have an effective, open, and trustworthy conversation. You need to be comfortable sharing all information and the lawyer needs to brief you on all legal aspects, so that the best outcome is possible for your personal injury case. A lawyer should communicate legal jargon in simple terms to you. They should understand your requirements and be open to using your approach as long as it is legal and reasonable.

When most people think of the words ‘pain and suffering’, they assume that such feelings cannot be quantified. While this may be true in most cases, it is certainly not so in personal injury cases. Pain and suffering is a key component is almost every personal injury case. From a legal point of view, pain and suffering has many connotations. Depending on the interpretation, when a personal injury insurance-related claim or case pops up, pain and suffering can and is quantified.

Types of Pain and Suffering

When it comes to personal injury cases, there are two main types or categories of ‘pain and suffering’ – physical and mental.

Physical Pain and Suffering
Mental Pain and Suffering
The actual physical injuries that the plaintiff is suffering through are placed under the marquee of physical pain and suffering. Physical pain and suffering include the injuries and resultant pain that the plaintiff has suffered through till date. However, it doesn’t stop there. It also includes the pain and suffering that the plaintiff may incur in the future, which will affect his/her life in a detrimental manner, owing to the negligence of the defendant.

In a personal injury case, mental pain and suffering is also a result of the injuries suffered by the plaintiff. However, they are classified as an indirect by-product of the physical injuries. Mental anguish, emotional suffering, distress, fear, anger, anxiety, shock, loss or reduction of enjoyment of life, humiliation, and other negative emotions that are felt by accident victim’s fall under this category of pain of suffering.

Basically, any mental ailment or suffering that stems from the physical pain and injuries of the traumatic accident are bundled under this category. Mental pain and suffering differs in different individuals based on the severity of the accident and victim’s capacity to handle the situation.

Serious mental pain and suffering comprises of anger, depression, sexual dysfunction, sleep disorders, and more. The worst type of mental pain and suffering is represented by the onset of PTSD or post-traumatic stress disorder. Like physical pain and suffering, a personal injury lawsuit takes into account all the mental pain and suffering that has been endured owing to the defendant’s negligence to date as well as the likelihood of mental pain and suffering that the victim might suffer in the future.

A committed and solid personal injury lawyer will be able to quantify this pain and suffering to present a well-formed personal injury lawsuit in front of the judge.

When it comes to personal injury cases, most plaintiffs are awarded compensatory damages. Punitive damages are awarded in very few cases because in order to award punitive damages, the defendant in the case has to be adjudged as deserving of punishment for intentional behavior that causes an accident/injury.

Unlike compensatory damages, punitive damages are not directly connected with tangible injuries. They are awarded to punish the defendant for behavior that has been deemed reprehensible. Such a claim is only possible if there is intentional misconduct, gross negligence, or reckless, malicious, and deceitful acts.

Gross Negligence

Ordinary negligence covers the violation of the duty of taking reasonable care. Gross negligence includes an element of recklessness to it. Defined as behavior that is reckless and shows a conscious indifference towards the safety, life and/or rights of other person/persons, gross negligence may be claimed while arguing a case for punitive damages in personal injury lawsuits.

Limitations on Punitive Damage Awards

Depending on the state you are in, there are different caps placed on punitive damages. For example, some states like Florida cap punitive damages at 3 times the amount of compensatory damages or $500,000 whichever is higher. Other states have different caps in place, and punitive damages awarded cannot exceed the caps placed by the state.

Reasonable Bias or Lack Thereof

An injured person is in a dire state. He or she may be suffering through physical injuries, mental trauma and more. In some cases, the injured person may lose his/her means of livelihood. They have the right to seek damages for all these claims. Covered under compensatory damages, the injured party stands to receive monetary compensation for medical expenses, loss of income, pain and suffering of a physical and mental nature, as well as for intangible losses like loss of consortium and loss of enjoyment for life.

However, to file a claim for punitive damages, the injured party and lawyer need to prove reasonable basis. This means that the injured person is seeking punitive damages for a reason, and has proof to back up his/her claim. If such proof of conscious disregard and misconduct is not found, and gross negligence is not proved, the injured party and lawyer stand to become penalized by the court. Frivolous claims are dealt with seriously and a monetary sanction for lack of reasonable basis may be levied on the plaintiff and the lawyer.

The most difficult and crucial aspect of a personal injury claim is to determine the value of accident injuries. The amount you may claim as damages varies in each and every personal injury case. While there is no hard and fast rule on how to value a personal injury claim, insurance companies follow their own standards.

There are a few things that a person/company held liable, and thereby, the liable insurance company, must pay for. These include medical care, loss of income and wages related expenses, loss of enjoyment of life, loss of consortium, property damage, and permanent physical disfigurement or disability.

Damages Formula

In order to determine the value of a personal injury claim, liable insurance companies follow a set procedure. Putting a dollar value on money that has been spent or will be spent is relatively simple as there are bills and records to supplement the calculation. It is infinitely more difficult to put a dollar value on pain and suffering damages, loss of enjoyment and consortium expenses because they are not tangible damages. When trying to determine the value of such intangible damages, insurance companies resort to using a damages formula.

  • Claim negotiations with insurance adjusters start with calculating the value of the total medical expenses incurred owing to the accident. This amount, known as ‘medical special damages’, forms the base figure of the settlement.
  • Damages that will be paid under categories like pain and suffering, loss of enjoyment and consortium are categorized under the heading of ‘general damages’. For minor accident related injuries, the insurance company adjuster will most likely use a multiplier to multiply the special damages amount by 1.5 or 2. For injuries that are more serious or that will have a lasting impact on the life on an individual, the multiplier may be higher (approximately 5 times). In extreme cases, the multiplier may even be increased to 10.
  • After the new amount is arrived at, the adjuster will add the amount of accident-related lost wages/salary to it.

The Process

Broken down like this, the formula is a fairly simple one. However, the figure that is finally arrived at after applying multipliers is not the final compensation by any means. This is simply the ballpark figure needed to begin the process of negotiation. Other factors like the degree to which both parties are at fault can change the final figure by a large margin.

In a personal injury lawsuit, plaintiffs may claim monetary damages from the person or organization that is held legally responsible for the accident. The amount of damages may be arrived at after negotiated settlements between the parties, attorneys or insurance companies.

Damage awards may also be ordered by a jury or judge after a court trial. Most damages that are awarded are done so under the marquee of compensatory damages. Basically, this is the amount that is meant to compensate the victim for what was lost during the accident or through injury in the accident. There are many different types of compensatory damages such as:

Medical: This is one of the most common personal injury damages awarded. It includes the cost of medical care that is associated with the accident and injury. Under this heading, victims receive monetary compensation for the cost of medical care already incurred as well as for estimated medical care costs in the future owing to the accident.

Wages: Some plaintiffs may be eligible for loss of income related damages. This includes compensation for salary and wages that have been and might still be impacted by the accident and injury. The damages paid for future loss of wages is classified under ‘loss of earning capacity’.

Pain and Suffering: Plaintiffs may be eligible to receive compensatory damages based on physical and mental pain and suffering that they have endured till date, and that they may possibly endure in the future because of the accident/injury.

Property: Reimbursement of fair value of personal property like vehicle, clothing, and other belongings that were damaged in the accident is also a possible type of compensatory damage.

Loss of Enjoyment: Some accidents cause injuries that keep you from living life the way you used to. When accident injuries stop you from enjoying activities that you would have otherwise (exercise and recreational pursuits), you may be entitled to damages due to ‘loss of enjoyment’.

Consortium Loss: In personal injury lawsuits, consortium loss damages basically relate to the impact an accident and resultant injuries might have had on the victim’s relationship with their spouse, living partner, or children. This includes loss of companionship, inability to maintain a sexual relationship and more. In some lawsuits, these damages may be awarded to the family member affected by the loss of consortium rather than to the injured victim.

Other than compensatory damages, victims may also be awarded punitive damages in some cases.

Defense strategies can help you win or lose a lawsuit. If you are the one filing a case, you need to know what defenses can be used by the defendant. If you are the defendant, it is important to understand how defense strategies work to help you win a lawsuit. When it comes to personal injury lawsuits, one of the first arguments in court is that the plaintiff was completely or partially at fault for the injury or accident. The defense strategies used in court depend on which negligence standard your state follows.

Comparative Negligence

Most states follow the comparative negligence standard in personal injury lawsuits. Under this standard, damages are calculated based upon the plaintiff and defendant’s fault in the accident. In such a situation, fault percentages for both parties can be determined based on the conclusion of police reports or on the basis of insurance stipulations. For instance, if the plaintiff is found to be 25 percent at fault for the accident and goes on to win $20,000 in compensation; it will most likely be reduced by 25 percent for your degree of fault in the accident. This means that the total damages will be reduced to $15,000.

Pure Comparative Negligence: In this standard, a plaintiff will be able to recover damages as long as he/she is not deemed completely at fault (100 percent). They are allowed to be anywhere between 1 and 99 percent at fault.

Modified Comparative Negligence: In this standard, an injured plaintiff may only receive damages if their fault percentage is at 50 percent or less. Some states hold up the standard to 49 percent or less.

Contributory Negligence

Very few states follow the unforgiving standard of contributory negligence. Active in states like Alabama, North Carolina, Virginia and Maryland, under the contributory negligence standard, plaintiffs are barred from claiming any compensation if they are found even slightly at fault. For example, if the injured plaintiff is held at 10 percent fault with the other 90 percent falling in the defendant’s corner; they are still barred from receiving any compensation through a personal injury lawsuit. This is if the state follows a contributory negligence standard.

In these states, if fault is not determined correctly, the plaintiff stands to lose plenty.

Their Choice

Similarly, if a plaintiff has ‘assumed the risk’ of injury by willingly participating in an activity that is deemed dangerous, their claim for compensation may be denied under the ‘Assumption of Risk’ standard.

The idea of negligence is a familiar one for most people when it comes to personal injury cases. It basically means that a person or business entity has disregarded the general standard of care and thereby, breached the standards of duty to provide reasonable care, and this has resulted in an accident. In such a case, the injury is a result of carelessness on the part of certain individuals/businesses. Gross negligence, on the other hand, is a different ball game.

What is Gross Negligence?

Gross negligence is a kind of behavior that shocks the conscience. Not just carelessness, gross negligence involves malice, recklessness, and a willful act/behavior that has caused harm to another person.

For instance, a business may be called negligent if they fail to repair a roof on time, and the damaged roof collapses causing the loss of limb, life and property. In the exact same situation, what if the business owner had had the roof inspected prior to the incident and he/she was told that the roof might collapse at any time and that it was very dangerous to allow people to keep working in the building?

If after getting evidence that the roof poses a danger, the business owner chooses to do nothing about it willingly, and the roof then collapses, the business owner may be charged with gross negligence in a personal injury case. In the second situation, the business owner willfully showed a complete disregard for the standard of due care.

In a personal injury case of gross negligence, the victim stands to get compensatory damage awards as well as punitive damage awards. Punitive damage is awarded in order to specifically punish the wrongdoer so as to set an example for others.

Defending a Gross Negligence Claim

There are a variety of factors that need to be responded to in a case of gross negligence.

  • Duty of Care: The defendant will have to prove that they adhered to the standard duty of care, and did not behave unreasonably in the accident situation.
  • Breach of Duty of Care: They will also have to prove that they did not breach a duty. Every person/business is trusted with the duty of taking reasonable care to avoid injuring another person or causing property damage.
  • Damages: Your lawyer will have to prove that since you took reasonable care in the situation, you are not to be held liable for the damages caused to another person and their belongings.

Even though an expert witness has not actually witnessed your accident, he can provide a highly plausible version of what took place based on the evidence. Applying the different facts and evidence of the case, an expert witness will be able to present convincingly to the jury, why the other party should be held liable for the accident. Here are some of the things expert witnesses will be able to do for your personal injury case.

Estimating Medical Costs

If you have suffered serious injuries or you have to undergo a long treatment plan, an expert medical witness is required for estimating medical costs and the level of your pain and suffering. This is very important, since the jury will consider the testimony of the expert witness while determining the compensation amount that should be awarded to you.

Leverage for Settlement and at Trial

Sometimes you can avoid the cost and effort of going to trial by hiring an expert witness. Such a witness could provide the required leverage you need for obtaining a reasonable settlement. However, an expert witness can also provide leverage for swaying the jury into providing a higher settlement as well. Whatever your case involves, the more expert testimony you are able to provide, better are your chances of acquiring a fair and quick settlement.

Cost vs. Results

Hiring the services of an expert witness can work out to be expensive, especially when you have to hire more than one expert. However, you need to consider how much your case could be worth. You also need to consider the evidence that is available, and strength of the defense arguments. If your case is worth a large amount and there are fantastic and genuine chances for the testimony of the expert witness of turning the case in your favor, then it is definitely well worth the expense of hiring one.

The other party is hoping you go the inexpensive route.

Even after winning your personal injury case and the jury has awarded you compensation, you might find it difficult to collect the amount in certain cases. Most businesses or individuals who have the financial resources will pay the compensation awarded by the jury, since they want to avoid further costs and unpleasantness of collection procedures. However, some will stubbornly refuse due to various reasons.

This is why you should not spend any money until it has reached your checking account. Even if you have been given a check that money still is not in your checking account until you physically take care of this action. You should not make any verbal commitments to any family members, dealerships, electronic stores, real estate agents, cell phone providers, friends, and so on until the funds are actually in your account. If you have to tell a lie to get people off your back and keep your financial situation under wraps then that is what you have to do.  

You may have to be firm with some people and tell them to leave you alone until you contact them.

Methods to Receive Payment

In such instances, you have the right to know the assets and sources of income of the other party, by asking for post-judgment discovery process. During such interrogatory, your lawyer can ask for deposition or request documents that shed light on the income or assets held by the party. You can also collect the damages awarded to you by the jury, by garnishing the income of the other party. In most states, there is a limit on how much you can garnish, and it is usually 25% of the person's paycheck.

Sherriff Involvement

You also have the right to garnish the awarded compensation from the person's bank account. If you have won a judgment against a commercial establishment or company, you can get the sheriff to seize the amount from the cash register of the company, or have the assets of the company seized for the required amount. To avoid litigation or a dangerous situation, make sure the seizing of the property is done by law enforcement or other authorized personnel.

In most states, you can collect the awarded amount within ten years of the judgment. However, if this time is not enough for recovering the amount, you can have the judgment renewed for another ten years. Hence, even if the individual or business does not have the required assets or income at present, they can be accessed at a future date, even after ten years.

When you are claiming compensation for a personal injury, you might have to undergo an IME (Independent Medical Exam). The insurance company or the defendant could ask for such an exam, where the physician who conducts your examination will be appointed by them. It is good to be prepared for IME, since the result of this examination can significantly influence your case.

At the IME, be prepared to answer queries about your injuries, such as:

  • How do you feel now?
  • What treatment you have undergone or are undergoing for your injuries?
  • Does any activity or a particular position cause pain?

The doctor who is treating you will not have time to provide you with details about your injuries. Hence, you need to note down points that you will be telling during the IME.

However, your answers during the IME need not be long and you do not have to give a detailed account of the accident. You only need to provide a description of your injuries, and the way these injuries have affected your day-to-day activities and your work.

Here are a few tips that can help you go through with the IME in the best possible manner.

Take a Friend Along

In most states, you are allowed to take someone along during the IME. It is always shrewd to have a witness, who will verify to what happened during the medical exam. However, make sure the person you take along does not argue with the doctor, or starts answering on your behalf. This is your ball game. You are the starting pitcher or the quarterback, all eyes are on you. This is the attention you need and what you have been seeking. You can also record this conversation if you want.

Your friend and family member can perhaps help you take notes or be the note takers themselves. 

Be Truthful

Do not exaggerate your pain or your symptoms, but at the same time do not leave out anything. Try to answer as accurately as possible, and do not use technical terms.

Do not Become Angry

Remember the IME doctor is chosen by the insurance company, and will be trying to discredit your claim or at least waiting to hear everything from you and will certainly not embellish any of your injuries or accept anything you say as the full and honest truth. Maintain a calm demeanor, even if you are provoked, and simply keep repeating what pain you are experiencing.

If you tripped over your child’s transformer toy the day before you should admit this. This could be the reason your lower back hurts for example. If your lower back was hurt during the accident (not tripping over the toy) then you need to explain this to the doctor. They may write down that some of your pain is coming from tripping over Optimus Prime but that your lower back was hurting before this accident. This accident just aggravated your injury. The doctor will not try to write off the fact that your lower back was injured initially from the accident (not the accident occurring in your home).

You should not have to worry about this type of deceit or dishonesty from any type of doctor.   

The deposition is an important part of your personal injury case, and you should be prepared for it. Even though the deposition is an out of court testimony, you will be speaking under oath, and hence you need to be careful what you say and how you behave.

The deposition mainly serves two purposes. Firstly, through deposition, the opposing side will get to know your version of what happened, and secondly during deposition the defendant's lawyer will try to catch you lying and try to portray your testimony as unreliable. Here are certain things that you should not do at your deposition.

1) Avoid sarcasm and jokes

Being sarcastic or telling jokes during a deposition will portray that you find the proceedings entertaining and it is all some sort of a game to you. You will not come across as somebody who has been injured, and is suffering from physical and emotional trauma, and undergoing financial difficulties. Rolling your eyes or smirking cynically looks very bad, especially when the deposition is being videotaped, and it can be shown during the trial to the jury. Hence, always maintain a serious demeanor with a calm and pleasant attitude.

2) Avoid angry outbursts

The opposing lawyer will try tactics to make you angry or destabilize your emotions. However, you should remain calm, and respond to accusations with a simple "I did not do that", instead of angry outbursts like "How dare you accuse me of this." If the lawyer is being argumentative or confrontational, you should not match his attitude, but rather answer firmly and politely. This the time for you to shine bright and do not be beguiled by the attorney’s tricks.

This is not the time as well to try to intimidate the other side. If you are being accused of being thuggish and you portray this image in the nice setting of this deposition you have just given the other side all the ammo they may ever need. Do not try to stair anyone down.

If you avoid these actions and act professionally it will reveal your power and truthfulness, and such a demeanor can win over the jury to your side, in case the deposition video is shown at trial. You can also refuse to answer an offensive or personal question, by just saying, "I do not want to respond to this question." 

3) Avoid testifying that you are worse off now than after the accident

It is common knowledge that symptoms of physical and emotional trauma will subside, and the person will be recovering when sufficient time has passed. Therefore, it would be wrong to testify that you are still feeling the same pain or even more, compared to what you felt after the accident. With such remarks, you can lose your credibility fast because the human body would have shown signs of healing by then.

The lawyer of the insurance company will be highly experienced in eliciting such testimony from you, by probing your attitude. He might suddenly ask whether you feel better now, compared to how you felt after the accident. This is bait, and the wrong answer would be saying that you are feeling the same pain as you felt back then.

If you actually still in pain saying that you are in pain could still be a hit on your credibility. This is because the judge or mediator and the other side is going to wonder why you do not seek help. If you are in pain you should see a doctor and a chiropractor as well. Then you would not be in pain by the time the deposition comes around. If you do not do anything then the other side is not going to believe you are actually in pain. And if you are in pain and you do not do anything about it, people are just going to question your state of mind. You certainly do not want that either.

4) Do not answer in one word when you feel your answer could be incomplete

At a deposition, the opposing lawyer will try to box you into saying something complete, when it is possible to add further facts later. This is called "closing the door" on your particular testimony. For instance, the lawyer might ask, "Have you revealed all the symptoms you have had, due to the accident?". If you answer in the affirmative then making any additions later on will make you sound inconsistent and false. Hence, unless you are very sure that you have given the complete details about the question and there is not going to be any further additions, modifications, or explanations, you can answer with a simple "yes".

However, if you feel that your response is incomplete and there might be certain things that you might want to add later on, you could provide a more detailed answer such as "At present this is what I recollect, but there could be other things that I am unable to remember right now".

5) Avoid speculating

Speculating would suggest that you are not sure of the facts or that you have developed the uncanny ability of reading other people's minds. For instance, saying that the driver in the other car had violent tendencies and wanted to hurt someone, would suggest you are speculating, unless you had contact with him before and knew him personally. Rather than speculating about other's intentions and thoughts, it would be much better to stick to the facts and describe in detail how the accident took place.

6) Do not be impatient and start answering without hearing the whole question

Depositions can take a long time, so cancel all other appointments, and take leave from work. Any other pressing tasks can make you impatient, which will not be good. For instance, starting to answer before the opposing lawyer could finish his question could be dangerous. Also, carefully listen to the question and you need not agree to things that you feel are not true. Do not let the lawyer make you admit things that are not facts. Even if the lawyer starts the question by saying, "Is it not true...?" do not be tempted to say yes, and then contradict your affirmative reply.

7) Do not enable the opposing lawyer to explore an incorrect summarization of your testimony

Be particularly attentive when the opposing lawyer is trying to summarize your earlier testimony. If it is not what you said, or it seems to convey something else, you have to state that you do not agree with the summarization, and have it put on record. This will mean you are not in implicit agreement to what this attorney is saying about what happened during the event or incident.

The lawyer might start a question with a summarization, and if you feel it is not correct, then do not start answering the question before you have made it clear that you do not agree with the type of description the other side is trying to paint. 

8) Do not speculate for "could it be" questions?

When you have answered "I do not know" to a question, the opposing lawyer might follow it up with another question that begins with "could it be...?". The lawyer is trying to make you speculate or is casting a doubt in your mind about your actions. Hence, the right answer to this question also would be "I do not know".

For instance, if the lawyer asks whether you would have done anything differently to avoid the accident, and when you say that you do not know, he follows with another question, asking "Could it be that, if you were not listening and singing out loud to the music while driving, you could have done things differently?" Here too the right answer would be the same as your previous one.

The attorney here is trying to get you to admit that your actions could have possibly caused the accident to take place. Perhaps if you were a little more attentive, this terrible crash would not have occurred in the first place. They are not saying it is your fault, they are trying to explore the possibility that this accident could have been avoided. But you need to remain steadfast that this other out of control person was going to hit even if you had cat like reflexes and/or you had the driving skills of a NASCAR driver.

9) Avoid being arrogant

One of the common strategies of the opposing lawyer will be to portray you as being arrogant or overconfident. For instance, the lawyer might ask you whether you have perfect driving skills, and if you answer yes, he might produce some of your previous traffic violations. It is better to say that you are a confident driver, and you were not in the wrong when the accident happened. This way, you do not come off looking overconfident, and yet you are not discrediting your driving skills.

If you have received a speeding ticket 3 years ago, just admit that. Who drives the speed limit every time anyhow? Most people do not.

10) Do not reveal your notes

If you have been keeping notes of the various facts of the case, then you can be asked to produce them for inspection by the opposite party. Unless you are sure about such notes and there are aspects that will help your case considerably, you need not say that you have made notes. However, you can always produce such notes later that might help add important points to your responses.

When you are injured in an accident and you want to file a lawsuit to claim damages, your lawyer will consider different aspects before accepting the case. The two most important factors considered are whether there is somebody responsible for your injuries, and whether your injuries are serious enough to qualify for a claim.

No Ambiguity

Your lawyer will first see whether anybody can be held liable for the accident. This means whether the other party was negligent or careless in causing the accident. Secondly, your lawyer will also consider whether such negligence was the direct cause of the accident and your resultant injuries. In certain cases, the liability is clear, for instance, when the other driver is drunk and has caused the accident by his rash driving. However, liability may be challenging when the victim is partially responsible for the accident. In certain states, if the victim is even partially at fault, the case is dismissed.

This does not seem right but that is the case in some states. The other driver can destroy your vehicle and put you in the hospital but if just happened to be speeding by about 2 mph perhaps (which is not really speeding) you can be the hook for all your losses. If this drives you up a wall (pun intended) you could consider moving to another state.

The Severity of the Injuries

The other main consideration is the damages you have suffered. Your lawyer will calculate economic, as well as non-economic damages. Economic damages include your medical costs for treating your injuries, present and future loss of income, and damages to your vehicle. Your lawyer will go through your medical records, determine the severity of your injuries, and evaluate whether these injuries are going to have a permanent effect on your life. 

Non-economic damages are considered, especially when you have suffered serious injuries. While evaluating these damages your lawyer will consider:

ü  The pain and emotional distress, you have suffered due to your injuries

ü  Whether you injuries are preventing you from pursuing your hobbies and recreational activities

ü  Whether your injuries are having an impact on your intimate relationship with your spouse

After considering all these factors, your lawyer will make a rough evaluation of what your case is worth, and whether it is worth pursuing.  

Loss of consortium is one of the non-economic damages, an accident victim can claim through a personal injury lawsuit. It can also be claimed by the surviving family member through a wrongful death case, when the victim has died. In a personal injury case when the victim is a spouse, he or she can claim loss of consortium, when the injuries have left him or her unable to perform recreational or romantic activities.

Critical Components Considered

During the personal injury trial, the plaintiff's attorney will present before the jury the various types of losses suffered by his client, due to the defendant's negligence and resultant accident. For calculating the extent of loss of consortium the jury will consider up to what extent the person is unable to perform sexual and other activities that express affection, love, and companionship. The jury will also consider the closeness of the relationship between the two spouses, and the type of relationship they were having before the accident occurred.

Highly Subjective

Generally, non-economic damages are hard to calculate, as it is not easy to put a dollar figure on suffering and pain. Loss of consortium damages is even more difficult to calculate because it involves emotional factors and psychological injuries. The jury will have to consider the impact the injuries are having on the victim's relationship with his or her spouse.

Importance is given to inability in maintaining sexual relationship, and providing companionship. In certain states, the court will also consider, the impact the injuries have on parent-child relationship, if the victim happens to be a parent or a child.

A separate case to claim loss of consortium damages can also be filed by the wife or husband of the injured victim. This will be a different lawsuit from the personal injury case that the victim has filed.

When you have filed a lawsuit for claiming compensation for your injuries, a discovery process takes place before the trial, which enables both parties to find information from the opposite party that is relevant to the case. One of the main components of the discovery process is the deposition, which is a question and answer session given under oath.

Rehearse Your Story

A deposition is essential because the testimony given during the session can be presented as evidence during the trial. If the testimony given during the trial differs from the one given during the deposition then the credibility of the witness becomes doubtful to the jury.

Even if the witness was right there and knows what happened explaining what happened could lead the witness to mix up certain details. This is why they need to go over what happened and write it down. You need to work with them, well, your attorney will handle this. Your lawyer needs to speak with the witness and ask questions that the opposition will likely ask the witness. You do not want your witness to become rattled during the deposition because this connotes doubt in what they saw. This is why preparation is pivotal. 

Questions to be Answered

During a deposition, there is a court reporter present, who will administer the oath, and record everything that is being said. Either party can request a transcript of this, and present it during trial. In a deposition for your personal injury case, the defense attorney will ask you to testify, and question you about the events that took place just before, during, and after the accident. The lawyer will mainly try to establish whether you were partly or fully to blame for the accident.

Consistency is Critical

At the deposition, you need to be sure about your recollection of how the accident took place. You also need to make sure there is not discrepancy between the testimony you have given during deposition and your trial testimony. If there is any difference on important points, you will lose credibility in the eyes of the jury, and their decision will not be in your favor.

The defense attorney would have thoroughly investigated your medical records and will ask you to elaborate on your injuries, and your present condition. Make sure you reply truthfully to these questions during the deposition and to not exaggerate any part of your condition and injuries correlating with the accident. The opposing lawyer can easily pin you down in the trial, on these points, if they have changed in any way from the deposition or if you are found to be exaggerating the extent of your injuries.  

A lien is a legal order put on the property of a person for satisfying the debt owed by the person to a third party. If you have received personal injury settlement, then there could be certain parties who could have a lien on this amount. Here are the possible candidates that can hold a lien over your settlement.

Health Insurance Providers

Liens on personal injury settlements could form part of the insurance plan, especially insurance plans for workers compensation that an employer has to take. In the plan there might be a clause asserting the lien on the settlement of the injured party. Such plans could include workman's compensation, ERISA plans, and government plans for employee insurance.

Healthcare Providers

In some instances, the victim will not have health insurance, or the particular plan may not cover the medical costs. In such cases, healthcare providers will have to recover their bills through liens on the settlement amount the victim receives, either through a court order or from the insurance company.

The lien can be made even through prior arrangement, where the injured party who does not have health insurance, or has a minimal insurance, will sign a consensual lien, with the healthcare provider, agreeing to repay the medical bills, out of the settlement amount awarded by the court, or through a settlement process. These agreements are often ambiguous or vaguely worded and therefore victims should consult their attorneys before signing them.

It is not uncommon for someone who has a fantastic attorney for that same attorney to try to confuse or persuade the victim to sign paper work that is not helpful to them. You should not sign anything you do not understand. You do not need to gamble in your life.

Medicare and Medicaid

A statutory lien is imposed by the federal government on Medicare payments. Medicare is not supposed to pay bills when the payments are expected from insurance plans or from workers compensation. Under Medicaid, even when the victim who is under Medicaid does not make a claim, the state can do so. If Medicaid has paid the medical bills of the victim, the state has to be reimbursed from the settlement, and it can impose a lien to recover such amount.  

Even when you have won your personal injury case and the court has awarded you an amount as compensation for your injuries, there could be certain issues in collecting this amount. The party who has been ordered by the court to pay the compensation might not have the money or might simply fail to pay you. This means, you might have to take further steps and spend money from your pocket to secure your settlement funds. Here are a few issues that can crop up when you are collecting your personal injury settlement, and the possible solutions.

Remain Patient

When the opposite party has the required finances, you can expect no difficulties in collecting your settlement amount. People who have the finances generally do not want to damage their credit reputation or deal with collection agencies. However, it becomes very difficult when the person does not have money or is refusing to pay for some reason.

Just because they lost the case the same reason that drove them to have this trial or meet with an arbiter still remains instilled in their very belief. Some people cannot admit the truth. There are other people who live in their own Harry Potter world and deny basic truths that everyone else takes for granted. This stubbornness can still hamper your ability to bring closure to this case. There are ways around this but that does not mean you should be spending money you do not have.

Full Out Attack

When the party is not paying, your attorney can ask for a discovery session post-judgment, to find out about the assets and liabilities of the party. If the party in question is a person instead of a corporation, you ask the court for garnishing up to 25% of the person's income. It is also possible to have the bank or business account of the person garnished, for collecting your settlement.

If someone remains hidden in their own little composite world you cannot change that. But you can take their money nonetheless. Hopefully they do not know where you live. They may believe they are right because they are in denial. If they want to not accept personal responsibility for their actions, they are immature.

You have ten years for collecting your awarded settlement, and you can have this term extended if you feel the person in question who does not have the required finances at present, will have it in future.

Terrible News

If the person who is asked to pay your compensation by the court files for bankruptcy under Chapter 7, then you will not be able to collect. This is because your court awarded personal injury settlement will be taken to be just any other creditor. 

Insurance companies allot personal injury claims to different adjusters, who investigate the claim and determine what amount can be offered as a settlement. It is therefore important to know how these adjusters operate, when you are making a personal injury claim. Since the adjuster is an employee of the insurance company, his main concern will be to lessen the settlement amount as far as possible, or not pay at all.

Accumulating Information

The adjuster does an in-depth investigation of the personal injury case, which involves finding out the facts about the accident, and the damages sustained by the insured. This investigation is much more thorough, and the adjuster will usually know much more about the background and health facts about the plaintiff than the plaintiff's lawyer.

Using Internet Sites and Tools

The adjuster will study the police report of the accident and will interview the insured regarding the accident. Insurance companies maintain claims databases that reveal the number of claims a person has made. Apart from researching this database, the adjuster will also research on Google to find out more about the insured, which can help in decreasing the claim amount.

There can be some startling or interesting information about someone online. On top of this, Facebook and sites such as LinkedIn can be checked too. These types of searches are pertinent, appropriate, ethical, sensible, and necessary. This information can determine the lifestyle of the insured and what other people think about this person. They can also determine if this person is a responsible person or perhaps impatient and desperate.

Apart from the thorough investigation, the adjuster will also directly ask the insured for documentation such as medical bills and records, proof of income, proof of damage to property, and tax returns. If medical records indicate, the insured had injuries or symptoms in the past than the adjuster will focus on these and say that the damages are due to previous injuries and not due to the present accident.

At a Certain Point in Time

All documentation will be reviewed meticulously by the adjuster to find out anything that might be used against the insured in lessening or denying the claim. The adjuster is not going to make any settlement offer or respond to a claims demand, unless he has received all the documentation that he or she requires.   

Insurance is a big industry, and when companies settle claims, their main concern is often what helps them, not you. Almost without fail, adjusters will want to deny or reduce your claim. If you've been injured in a car wreck or other accident where someone else was at fault, you'll be dealing with insurance companies on a daily basis. While nothing can replace the professional experience of a good personal injury attorney, it's almost important for you, the client, to understand the process of getting a fair settlement.

Collect as much information as you can.

Start by collecting copies of your medical reports regarding the injuries you sustained from the accident. If there are witnesses, ask them for their contact information, and get in touch promptly to ask them for statements. Get a copy of the police report, as well.

If you have a serious injury with the potential for a high claim amount, consider hiring professional investigators and an accident reconstruction professional. Expert testimony can be a great asset if the case goes to court. Your insurance adjuster has been trained to thoroughly investigate all aspects of the case; you need someone on your side to do the same.

Take photos - lots of them.

Most people know they should take pictures of the accident scene. This is a very important step in the process of documenting your claim. Capture the position of the cars, the physical damage to your car from different angles, and your surroundings. But there's something else you should be taking pictures of: your injuries. Cuts, abrasions, and bruises will heal, but they are still part of the injuries you've suffered. In our culture today, a picture is worth more than a thousand words - and could make the difference of thousands of dollars.

Ask your attorney before signing anything.

As any of the attorneys at Taylor King & Associates can tell you, the first rule of personal injury claims is that you should never sign anything unless specifically directed by your attorney. The other driver's insurance company will likely ask for access to your medical records, which requires that you sign a release form. Only your attorney and your own insurance company should be given access to your medical records. Third-party adjusters can find small reasons (like that high school sports injury that might qualify as a pre-existing injury) to make big deductions to your settlement.

Stay tuned for Part 2 of this three-part series to learn more. 

 

Don't give answers that will lower your claim reserve.

After you file a claim with an insurance company, in the process of setting up that claim, the company will "set a reserve." This is an estimate of the potential value of your claim, and it's a required accounting procedure for the insurance company. This is the amount they expect to pay for your claim. Obviously, it works in your favor for the reserve to be high, and in their favor if it's low. Once the reserve is set, it may be difficult to have it raised. It's important to avoid giving your adjuster information that might lead to a lower reserve.

How does an adjuster determine the reserve amount? Several factors come into play. They'll request documentation of property damage, medical treatment, and police reports. They will also be persistent in speaking with you. During an interview, they'll ask seemingly innocent questions regarding the type of injuries you received and how those have impacted your life. You may get calls like this from your own insurance company or the other driver's. Regardless, if you have already hired an attorney, you can tell adjusters to contact your attorney instead of answering those questions yourself. It's important to be honest and cooperative, but you also should know that making simple statements like, "I didn't break any bones," or "I'm feeling better today" can lower the value of your case and result in a lower reserve.

We strongly recommend finding legal representation to handle the insurance company's questions and negotiations. They'll have a lawyer on their side; shouldn't you have someone on your side, too?

Give your attorney frequent updates on medical visits and bills.

It's not uncommon to have injuries develp or worsen several days after the accident. Some serious internal issues may not be diagnosed for weeks. If your injuries develop or worsen, your medical bills may increase and, thus, your claim value would go up. Adjusters are very suspicious of after-the-fact injury claims, and we don't blame them. That's why it's so important to document every medical visit and give this information to your attorney, so that he or she can pass it on to the insurance company. Consistent commuication is key to reaching a reasonable settlement.

Here at Taylor King Law, we understand that adjusters have a job to do, and their power to increase reserves may only go so far. But if you trust us to do our job, we can advocate for your rights and help you get compensation that's appropriate for your claim and fair to everyone.