Litigation Process

August 24, 2010

They Have to Settle – They Don’t Want the Publicity!

I believe I was injured as a result of gross negligence at a local hospital. What they did to me was outrageous – the media will have a field day with it. In fact, it may force the hospital out of business. Doesn’t this mean I will get a quick settlement?

Perhaps. It is true that some cases are settled to avoid publicity. But these cases are relatively rare and in my opinion many people over-estimate the impact of the threat of a public airing of a situation will have on the ability to resolve the case. Most (not all, but most) of the time those who are sued or who are at risk of a lawsuit place more importance on the merits of the case and the provable damages than they do on the threat of publicity.

An experienced personal injury lawyer can help you determine whether and when to bring the treatment you received to the public eye. I recommend that you not seek media attention or even speak with the media until you discuss the matter with an experienced lawyer.

August 23, 2010

What is a Pretrial Conference?

by The Law Offices of John Day, P.C.

I have a personal injury trial is three weeks. My lawyer says she has to go to a "pretrial conference" next week. What is that? Do I need to be there?

Generally, conferences are held prior to a trial so that the Judge and lawyers can resolve disputes about the admissibility of evidence, the timing of witness testimony, and other logistical matters. Pre-trial conferences can greatly streamline the progression of a trial thereby minimizing the financial cost on the parties, witnesses, jurors and the Court.

You need to ask your lawyer whether you should attend. It is rare that clients attend a pretrial conference, but that is question that you need to address with your lawyer.

August 20, 2010

How Much Do Depositions Cost?

by The Law Offices of John Day, P.C.

My car wreck case has not been settled and now my lawyer says we have to take depositions. What are depositions and what do they cost?

A deposition is testimony given by a plaintiff, a defendant or witness in a lawsuit before the case actually goes to trial. The person giving the statement is called the deponent. At the beginning of the deposition the deponent is asked to swear or affirm that the statement will be truthful. The deposition is taken by a lawyer asking questions of the deponent. Usually, the lawyer for the plaintiff will take the deposition of the defendant and the lawyer for the defendant will take the deposition of the plaintiff. Either lawyer may take the deposition of other people who have knowledge about facts important in the case.

The deposition is recorded and transcribed by a court reporter. The cost of a deposition depends on whether you are buying the "original" or a "copy." The person who takes the deposition buys the "original" and other parties each buy a "copy."

August 18, 2010

What Do You Charge To Meet With Me About My Case?

by The Law Offices of John Day, P.C.

I was hit by a tractor trailer and my car was totaled. I spent 4 days in the hospital and it looks like I am going to miss several weeks of work. What do you charge for meeting with me to see if I want to hire you as my lawyer?

There is no charge whatsoever. I have never charged for an initial meeting with potential personal injury clients. I meet with personal injury clients wherever is convenient for them. For example, last week I met with one potential client in Kentucky and another in Sparta, Tennessee.

I understand that people who have been injured have difficulty coming to meet in my office and the financial pressure caused by the injury makes it difficult to afford gasoline for the trip. Thus, I am happy to meet with any potential client at a place and time convenient to them, including nights and weekends.

August 15, 2010

Will My Case Go to Trial?

by The Law Offices of John Day, P.C.

I was hurt when I was swimming and got run over by a jet ski. I have filed a lawsuit but am scared to death about going to trial. Will there be a trial?

Now days, most cases do not go to trial.

These statistics will give you an idea of how many cases are actually tried. In the one-year period ending June 30, 2009, there were about 11,000 lawsuits filed involving all types of personal injury and wrongful death in the state of Tennessee. (Many other cases were settled before a lawsuit was even filed; those numbers are not publicly available.) However, there were only 260 jury trials and 348 non-jury trials in personal injury and wrongful death cases during that same period. These statistics are about the same from year to year, and thus it is fair to say that only about 5% percent of personal injury and wrongful death cases in which lawsuits are filed actually go to trial.

August 13, 2010

Can Police Accident Reports Be Used as Evidence of How the Wreck Occurred at Trial?

by The Law Offices of John Day, P.C.

The police accident report says that I was not at fault in my wreck and that the other driver was at fault. Can I used the police report as evidence at a trial to prove the wreck was not my fault?

Not in Tennessee state court. A rule of evidence specifically excludes police accident reports from the types of public records that can be admitted into evidence at trial to show how an accident occurred.

Why? Because unless the officer actually saw the accident the police report is only the officer’s opinion about what happened. That opinion may be based on solely on whether the officer believes one person or the other and may have little value in determining what actually happened.

August 12, 2010

What is Mediation?

by The Law Offices of John Day, P.C.

I have a personal injury case in Tennessee. The judge has ordered the case to mediation. What does that mean?

Mediation is a process where a person who has no stake in the outcome of the case (the "mediator") helps the parties to the litigation try to resolve their differences. Mediation has increased greatly in Tennessee in the last twenty years.

I had the honor of being appointed by the Tennessee Supreme Court to a commission that drafted the original court rule concerning mediation and other forms of alternative dispute resolution. I served on that commission about twenty years ago.

August 11, 2010

Are Settlement Proposals Disclosed to the Jury?

by The Law Offices of John Day, P.C.

We offered to settle my car wreck case for $40,000. The insurance company for the guy that caused the wreck only offered $22,000. Will the jury be told about what I was willing to take in settlement before trial? Will they be told that I was offered $22,000?

No. Absent extraordinary circumstances, settlement offers from either party are not admissible at a later trial. The purpose of this rule is to encourage people to engage in settlement discussions, and thus usually the proposals made by one side or the other are not admissible in a later trial.

Of course, there are certain exceptions to this general rule but I must say that they are quite rare. An experienced personal injury lawyer can explain whether any exception to the rule is applicable in your case.

August 10, 2010

Why Juries Are Not Told About Liability Insurance?

by The Law Offices of John Day, P.C.

I was in a car wreck and it doesn’t look like we will be able to reach a settlement – the other driver’s insurance company does not want to pay me a fair amount to settle the case. Will the judge and jury know that the other driver has insurance?

No. They may assume that the other driver has insurance, but they will not know he or she has insurance. Absent extraordinary circumstances neither you, your lawyer, nor any of your witnesses can mention that the other driver has insurance.

Why? Because the presence or absence of insurance should not influence the jury’s decision. A person is responsible for the harm they cause. Smart people who can afford it buy insurance to protect themselves from the financial consequences of making a error that hurts someone. But the law does not permit the jury to be told – one way or the other – about insurance because technically it should have no impact on the value of the case.

August 9, 2010

The Other Driver Doesn’t Have Enough Insurance!

by The Law Offices of John Day, P.C.

I was in a bad car wreck. I had $50,000 in medical bills and missed eight weeks of work (I make $800 per week as a mechanic). I am probably going to have to have another surgery. My doctor also says I will have arthritis for the rest of my life. I just found out that the person who hit me only has $100,000 of liability insurance. That is not enough for what he did to me. Can I force the person who caused the wreck to pay me out of his pocket?

A person or company is always liable for all of the harm they negligently cause. A person purchases insurance to reduce his or her own risk of coming out of pocket to pay for that harm, but if the harm caused exceeds the amount of insurance purchased he or she is liable for the rest.

The problem, of course, is collecting from a person who causes harm. To make a payment to the injured person over and above the amount of insurance the person who causes harm must have assets, income, or both. Many people have very few assets and insufficient income to make a payment to the person who they hurt. If pressed, these people will often just file bankruptcy and the bankruptcy court will discharge the obligation. (There are some exceptions to this. For example, the bankruptcy court will not discharge the lawsuit-related obligation of a drunk driver or a person who intentionally harms another.)