Jose Luis Orihuela
The Many Phases of a Car Wreck Claim
One of the many things I do in my initial consultation with a client who has been the victim of a car wreck is to explain to them the many phases of car wreck claim. A lot of people come in not knowing how long a claim takes and what steps are taken in resolving a claim. Although this post will not explain everything and every situation is different, I hope this post will at least give the general public a general idea of what happens when one is the victim in a car wreck.
First and foremost, a claim can settle at anytime throughout the process. Attorneys are to make themselves available to an offer from the opposing party at anytime in the process. Once an offer is made, it is the job of the attorney to communicate said offer to the client to see if he or she accepts it. Therefore, not all claims reach the final phases. Please keep that in mind as you continue.
Obviously, the first phase is the accident itself. What is important here is what you do when said accident occurs. If you are seriously injured - CALL 911. Get yourself medical treatment. If you are not seriously injured, but still hurt - MAKE SURE YOU SEE A DOCTOR WITHIN 24/48 hours. Insurance companies do not treat claims equally. Do not assume they will take your injuries seriously. They do not!!! They are more likely to acknowledge your injuries if you see a doctor withing the 24/48 hours after the accident occures.
Second, make sure you get all the information from the other driver. If you can get the following:
- Insurance information
- Driver License Number
You will also want to take pictures. I cannot empasize this enough. TAKE PICTURES OF EVERYTHING!!!!
Take pictures of your vehicle. Take pictures of the other vehicle. Take pictures of the location. Take pictures of anything that is related to the accident. It will help later on.
The next step in the process is for you to recieve the treatment you need. For everyone this is different. Some people may only need to go to their MD and get prescription medicine. Others may also need therapy. Then you have others who have more serious injuries. These people may need MRI, epidural injections, visit an ortho and some may actually need surgery. Everybody is different. No one person is the same. Therefore, I make sure you are able to get the treatment you need.
Also, take note, insurance companies categorize your injuries. Although it may take you 8 weeks to recover from a car accident, the insurance company will say that it takes most people 6 weeks to recover. They will only want to pay 6 weeks worth of treatment instead of the 8 you recieve. They will pigeon hole your injuries to fit what works best for them, not works best for you. This is why it's important to hire a lawyer. You want someone who is looking out for your best interest.
Now that your done with treatment, your attorney will then try and negotiate a settlement with the insurance company. An attorney will not or should not attempt to settle a case prior to your treatment being complete. The reason for that is because if your treatment is not yet finished, then any demand does not contain 100% of the information it needs and you may still have an undiscovered diagnosis. Thus, a settlement made while you are treating would mean that you and your attorney have undervalued your claim. Your bite at the apple was to small when you could have gotten more because of the ongoing treatment.
With your treatment complete, your attorney will attempt to negotiate your case. If successful your attorney will get an offer on the table that is satisfactory for everyone involved. If the process fails, then your attorney will have to begin litigation.
Litigation is when your claim has been brought to Court for resolution. This is when your attorney has filed paperwork with the Court to bring forth a lawsuit against the responsible party for the car accident. You are officially holding the other driver responsible for the car accident in attempt to make his or her insurance pay what you are entitled to recieve.
Service of Process
This is the process of notifying the Defendant that legal action has been filed with Court. This can take up to 60 days after the suit is filed. Many things can go wrong at this stage. Sometimes the address the attorney has of that individual is incorrect. The Defendant has moved since the accident. Maybe the Defendant is avoiding service in order to avoid taking responsibility.
Thus, there can be a delay in getting the process of litigation moving forward. A lawyer at this stage should be able to obtain new address information and if the Defendant is in fact avoiding service an attorney can get an order whereby service can be done by leaving the document at the home or work of the individual.
There are solutions, but just know that delays do exist.
Once the Defendant is served and an Answer is formally filed with the Court, the process of discovery begins. There is written discovery and oral discovery. Written discovery is when a lawyer asks written questions to the other side and the other side must answer it. Oral discovery is when the attorney gets to take a deposition/interview of the other party.
If the case has not settled on its own after discovery is completed, a Court will usually order the parties to mediate their case. What this means is that the parties will meet with an independent party who will try and resolve the case.
I was once told that a good meditation is when the case is settled and both parties leave unhappy. In other words, the case is done, but everyone made sacrifices in order to resolve the case.
Now about 29 out 30 cases settle. But there is always that 1 case that does not. If your case does not resolve then you will eventually have a trial in front of a judge and jury. Here your attorney will present your side of the case and the opposing party will get a chance to determine their side of the case. You will then hand your case over to a jury and let them decide your fate.
Here, I handle every case as if its going to trial. You never know which case ends up in front of a jury. The ones you that will settle sometimes never do and the ones you do not believe will settle are the ones that sometimes settle the quickest. You never know. Make sure you hire an attorney that takes your case seriously and will make sure it is trial ready if your case ever makes it that far.
Finally, if you have tried the case and won always know that the Defendant has a right to appeal. In other words, they will try and get a second opinion on a question of law that may help them. Please note, an appellate court does not decide or make conclusions on the facts, only on questions of law that maybe the original judge got wrong. Some mistakes are minor and although it may exist it would not have changed the outcome. Others are major, thus, your case is sent back to the first court for another trial.
It's a long process. That is why hiring an attorney is a big deal. Make sure you hire one that knows all Phases and can tackle them and also keep you and your family informed of what is going on. Communication is key in any relationship, but it's very important in one involving an attorney and their client. If you have questions regarding an injury or you have a loved one who has been hurt, please feel free to call Jose Orihuela, Attorney at Law.