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Litigation: What If The Case Does Not Settle?

What happens if the insurance company does not meet our settlement range and the case does not settle?

If the insurance company and your lawyer cannot agree upon the value of your case, it may be necessary to begin a lawsuit. This is also referred to as litigation. The lawsuit will usually be brought against the person, persons, or company who caused your injuries and the insurance company won't be named unless the case is an uninsured or underinsured motorist case.

In some cases, your lawyer may suggest waiting a period of time before commencing the lawsuit in the hope that the insurance company will increase its evaluation of your claim. However, in cases where the parties are significantly far apart with respect to the value of a claim, litigation is may occure earlier.

What factors would cause my case to go to litigation?

There are several reasons why a case does not settle including the following:

  1. The insurance company believes that you and your lawyer have asked for more money than they are willing to pay voluntarily for the claim.
  2. Liability, that is “fault,” is either being denied by the insurance company or the insurance company believes that you and / or some other party bear some responsibility for your own injuries.
  3. The insurance company, because of internal reasons or company policy, resists payment of your claim and is forcing claimants to go through the trouble of a lawsuit.
  4. The insurance company is stalling for time hoping that you and your lawyer will reduce your value of the claim.
  5. The insurance company does not believe that you were injured, or that you were injured as badly as you claim. Therefore, the company is required that you pursue a lawsuit to prove your injuries.

Is it possible that my case will settle before trial?

Yes. Many cases settle during the lawsuit process while a small minority of cases have to proceed all the way through trial. It is impossible to predict with certainty when or if any particular case will settle.

What should I do if my case proceeds to a lawsuit?

After the lawsuit is commenced, your lawyer will contact you about your duties. You will probably have to answer interrogatories and attend a deposition. During litigation it is important for your to do at least the following:

  1. Stay in touch with your lawyer.
  2. Inform your lawyer of any changes of address, phone number, work status, marital status or changes in your injury.
  3. Respond to your lawyer’s letters and phone calls if he or she requests contact.
  4. Prepare and obtain any documents requested from your lawyer immediately after the request.
  5. Keep track of all medical bills and lost income and report such information to your attorney.
  6. Stay out of trouble which could be used against you in court such as drunk driving, shoplifting and other criminal activities.
  7. Maintain your employment status and avoid confrontations with your employer that could be used against you at trial.

Does a lawsuit require a substantial amount of work from my lawyer and, if so, will I be charged extra?

Some contingent fee agreements provide additional percentages if a lawsuit is required. Your attorney will advise of this at the time he or she accepts your case. Litigation is a very time consuming and difficult process. Your lawyer will have to prepare documents for court, take depositions, research the law, correspond with the defense attorney, correspond with you, correspond with your witnesses and doctors and prepare for trial. Your file will grow in size, and your lawyer will probably have other people working on your case such as secretaries, paralegals and associates. Therefore, you can expect that your lawyer will be very busy preparing your case for trial. In some cases your lawyer may have other attorneys act as counsel on your case. If this occures the fee will be split between the attorneys and will not be higher to the client.

Will I have to answer interrogatories?

Interrogatories are questions sent to your lawyer by the lawyer for the defendant. You and your lawyer may be asked to answer a number of questions, usually 30 or more, with various sub-parts. Some of these answers will be prepared by you and some of them will be prepared by your lawyer.

What are depositions?

Depositions are very important procedures because a deposition is usually the first time you will actually testify about your case. Depositions take place in the office of one of the lawyers involved in the case. In your deposition, the attorney for the defendant will ask you questions about your injuries, the incident, and background information about you and your family. Your answers will be taken down word for word by a court reporter who will transcribe your testimony. The transcript of your testimony will be read by all attorney's,  representatives of the insurance company, and portions may be used at the trial.

What if I don't want to have my deposition taken?

Unfortunately, you don't have a choice. If you commenced a lawsuit involving personal injuries, the law requires that you must be deposed if requested to do so by the other side.

Does the person or person who caused my injuries have to be deposed also?

If your lawyer decides it is necessary, a deposition of the defendant or defendants will also take place. In some cases, your lawyer may believe that it is better not to take a deposition. Your attorney will make that decision.

How do I prepare for a deposition?

Your lawyer will assist you in preparing for your deposition. In most cases you will be given plenty of notice allowing for time to prepare. In addition to advice given to you by your lawyer, you should consider the following:

  1. Dress appropriately as though you were going for a job.
  2. Read your interrogatory answers and any other documents your lawyer instructs you to read. Read them carefully; don’t just skim through them. Preparation will mean a better chance of a favorable settlement.
  3. Tell the truth even if you think the answer might hurt you. The worse possible answer is an answer which is a lie. If the defense attorney catches you in a lie, he or she now has the opportunity to destroy your entire case.
  4. Don't argue with the defense lawyer. It will never do you a bit of good to argue with the defense attorney.
  5. Be polite. It can only help you and will never hurt you.
  6. Listen carefully to the lawyer’s questions. Do not jump ahead and answer the question before the lawyer finishes
  7. Think before speaking.
  8. Don’t agree just because the defense attorney asks you to agree. Some defense attorney's use the trick of making several statements to which you agree. Then, they throw in a final statement which may not be true, but because you are so used to agreeing, you admit something that you should not. Therefore, it is important to listen to each statement or question carefully.
  9. Don’t answer more than you have to. Some witnesses ramble on an on. Rambling will destroy your case. Simply answer the questions and do not explain your answers unless you are requested to do so.
  10. Look the defense attorney in the eye as much as possible.
  11. Speak clearly.

Why are depositions important?

These are several reasons why your deposition is important:

  1. The defense attorney will be sizing you up. If he or she is impressed with you and your testimony, settlement becomes more likely.
  2. The deposition is excellent preparation for trial. If gives you the opportunity to experience testifying.
  3. Your testimony, if it is false, can be used against you at trial.

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