| THE SLOW WHEELS OF JUSTICE ON THE ROAD TO LITIGATION |
The field of personal injury law is not the same as it was ten years ago. Because juries are returning very conservative verdicts, insurance companies are responding in kind by making minimal offers on personal injury cases, especially those where there are no broken bones, no surgery required, or no permanent scarring. The result of the insurance industries' nominal offers is more litigation. People are starting to turn to litigation because they feel they have little or nothing to lose based upon the low offer made by the insurance company. It is the proverbial equivalent of dangling a carrot in front of the horse's nose. In these conservative times, unfortunately, the carrot is often too small. Therefore, Plaintiffs demand their day in court. 1 There is a major fallacy with the above-discussed rationale, however. The reality is, it takes money to go trial, and in some cases, lots of it. So when a client says, "let's take them to court, we have nothing to lose", I have to politely set the record straight. They do have something to lose, and in some circumstances, they may actually lose their case altogether and may be out thousands of dollars for litigation expenses. Therefore, before filing suit on a case, I like to give my client "the rest of the story", as Paul Harvey used to say. Initially, we will file a lawsuit against the Defendant in the Superior Court of the county in which the Defendant lives pursuant to Georgia law2. Please note that most counties charge an administrative and filing fee of approximately $100.00 in order to file the complaint. You must also pay the Sheriff's office $25.00 extra for each Defendant that needs to be served. Once the complaint is filed, the Defendant (in actuality an attorney hired by the Defendant's insurance company) will have 30 days in which to answer your complaint. After the 30-day period expires, a six-month discovery process will begin. At that time, the insurance company's attorneys will serve you with written questions that are called interrogatories. The insurance company's attorneys will also ask that you provide pertinent documentation to them. At that time, the insurance company will also take your deposition (your sworn testimony). It will be necessary for you to obtain a copy of that deposition transcript for your preparation for court. Your deposition will cost approximately $400.00 to acquire from the court reporter. It will also be necessary for your attorney to take the deposition of your treating physicians. The physicians will charge approximately $500.00 each for their testimony. After all of those depositions are completed, and the six-month discovery period has expired, you will be eligible to be placed on the court trial calendar. Please be advised that on the average, it takes approximately eight to eleven months to reach trial in most counties. Most trials last approximately three to five days. You will need to take off work for those days. The actual trial process will proceed as follows. Before the trial begins the judge will ask the attorneys if there are any pre-trial motions to be argued, i.e., motions to limit evidence, motions to introduce specific case law, etc. Once those motions are decided upon by the judge, the voir dire process will begin. Voir dire is the process by which a jury is chosen. Generally, the judge will call 24 potential jurors (veniremen) into the courtroom. The judge will ask a series of questions, and then the attorneys will get their chance to question each individual potential juror3. This questioning process may last as long as a day, but on the average takes up the first half day of trial. Once the questions have all been asked and answered, the attorneys will each have the opportunity to strike six jurors. The Court Clerk will take the list of potential jurors to the Plaintiff's table first and he will strike one juror. Then the Clerk will take that same list to the Defendant's table and he will also strike one juror. The process continues until twelve jurors are struck, leaving a panel of twelve4. So in essence, the attorneys do not pick the twelve jury members, they eliminate the jurors who may be most adverse to their respective case. The attorneys base their calculation or choice of juror elimination on the answers given by the potential jury members during the voir dire questioning. After the judge swears the jury and makes some preliminary comments, the attorneys will give their opening statements. The Plaintiff will go first. He will give the jury an outline or a blueprint of his case. He will emphasize the strengths of his case, but he will also let the jury know the weaknesses, so as not to be discredited when the Defendant gives his statement. After Plaintiff's opening statement, the Defendant will give his opening and discuss his strengths and weaknesses. After opening, the actual evidentiary portion of the trial will begin. The Plaintiff's attorney will call a list of witnesses (which generally includes his client, the client's treating physicians, any fact witnesses, any character witnesses, etc.) to the witness stand. There, he will question them during what is referred to as direct examination. After he is finished with the witness, the Defendant's attorney will have his chance to question the witness during what is referred to as the cross-examination phase. This process will continue until the Plaintiff has called all of his witnesses. Then the Plaintiff's attorney will notify the judge that the Plaintiffs rest, (meaning their portion of the evidentiary part of their case is completed). At this time, the Defendant will present his witnesses and/or written documentation to the court, and the Plaintiff will have the chance to cross- examine the Defendant's witnesses. When the defense rests, closing arguments will begin. Again, since the Plaintiff has the burden of proof, his attorney is allowed to go first. Moreover, and most importantly, court procedures allow the Plaintiff to go last as well, after the Defendant has given his closing statement. This is a very big advantage for the Plaintiff's attorney, because he is the last attorney who speaks to the jury before they retire to the jury deliberation room. After closings, the judge will "charge" the jury as to what the pertinent law is with regard to this case. The jury will be asked by the judge to apply that law to the facts of the case as the jury believes them to be. The jury is given a verdict form and will retire to the jury deliberation room to make their decision. The jury's decision must be unanimous. Once the jury returns the verdict, the judge, or his law clerk will read the verdict into the court record. At that time, the judge will ask if there are any further motions. Usually, the losing side will restate any objections made during the course of the trial so as to preserve the right to appeal. If the case is not appealed within thirty days after the verdict is read into the record, the verdict will stand. As you can see, in the average case the Plaintiff will incur a minimum of $1,000.00 in court costs, deposition costs, expert fees, and expenses of litigation. You must also remember that you will lose approximately a week's worth of wages for the time the trial takes, or at best valuable vacation time. You will also undergo the rigorous trial procedures that are outlined above. Therefore, you do have something to lose. Let us take an example. You are involved in a collision that is not your fault. Fortunately, you have no broken bones, no permanent scarring and are diagnosed with a "whiplash" type injury. You incur about $2,000.00 in medical bills. At that time, you begin a course of negotiation with the insurance company. An average offer on such a case from State Farm or Allstate will be $3,500.005. If you accept the $3,500.00, your attorney will get about $1,400.00 for attorney's fees (a contingency fee of 40%), leaving $2,100.00. The physicians will get $2,000.00, leaving you with $100.00 for your pain and suffering6. Your initial thought at this time is, "well I only have a $100.00 to lose if I go to court. My attorney's fees are contingent upon my winning the case. Therefore, I want to roll the dice and risk that $100.00 and have my day in court". Here is where the fallacy comes into plain view. As discussed above, it will cost approximately $1,500.00 in expenses to get to trial. (Please note that nearly all law firms require these expenses to be paid upfront). Therefore, if the jury returns a verdict of $4,000.00, which is unfortunately statistically in the realm of what the jury will return, your attorney's fees will be $1,600.00 leaving $2,400.007. At that time the doctors will be paid their $2,000.00 leaving $400.00. But remember you have already paid $1,500.00 to get your case to trial. Therefore, at this time you are $1,000.00 in the red, not to mention all the time and energy you have devoted to your case. The bottom line is that you should very carefully examine all of the risks involved before you litigate a case where you have no broken bones, no surgery, or no permanent scarring. Please note that you now have one further option available to you that is less costly and more expeditious than pursuing your claim in the State or Superior Court, and that is to file a claim in the Magistrate Court of the county where the Defendant lives. You may file a claim up to $15,000.00 in Magistrate Court, pursuant to a new law which came into effect on July 1, 1999. The previous maximum amount you could sue for in Magistrate Court was only $5,000.00. Please note that you will always be relegated to the figure of $15,000.00 (or less), even if there is an appeal to a higher court. If you elect the Magistrate Court option, you will file your case with the Clerk of the County Magistrate, with a copy that the sheriff will serve on the Defendant. You should make an additional copy for your records. There will be a fee for filing and serving your complaint. The amount of this fee varies from county to county but will be approximately $60.00. The sheriff will serve the Defendant with the lawsuit. Once the Defendant is served, he will have thirty days from the date he was served to file his answer with the court. You will be sent a copy of the sheriff’s entry of service, which will indicate when the Defendant was served. When the Defendant or his insurance company's attorneys answer the lawsuit, you will be notified of the answer and subsequently, the date of your court appearance. If the Defendant does not answer within forty-five days, you may request entry of a Default Judgment. The court may require a hearing in which you present evidence to support the amount you claim due before entering the judgment. If the Defendant answers the lawsuit and you are informed of the court date, you must bring to court all pertinent documents and witnesses to show the court that you have a valid claim. You will then state to the judge the reason the Defendant owes you money and the amount owed. This figure will be a combination of medical bills, your lost wages, your property damage (if not already paid), and compensation for your pain and suffering8. The judge will then hear the Defendant’s side of the dispute and make a decision. If you should win the lawsuit and the Defendant refuses to pay on the judgment, please contact our office and we will advise you regarding collection of the amount of the judgment. If the Magistrate Court decision in the case is not in your favor and you wish to pursue the matter further, you may automatically appeal the decision to the State or Superior Court within thirty days and should contact our office for further instructions. Once the case has been appealed, as mentioned above, you cannot ask for any figure higher than $15,000.00; however the case will be heard again in its entirety, and it would be in your best interest to have an attorney with you at that time. You may or may not elect to have an attorney represent you in Magistrate Court. To summarize, litigation is a costly process. It is also time consuming. If you have a soft tissue injury and feel the insurance company offer is too low, you may want to proceed to court, but it is very important that you know all the pratfalls involved before doing so. If you appreciate all the risks and still want to go to court, and are willing to pay expenses up front, an attorney and a jury trial are the route for you. However, if you are unwilling to take that risk, you may want to carefully consider the offer from the insurance company before initiating the slow wheels of justice. 1. Please note that this article will predominantly discuss the soft tissue injury claim as it pertains to litigation. If your injury involves surgery, permanent scarring, or broken bones, the litigation process may be more advantageous. This is because your chances of a higher verdict are greatly increased. 2. Please note that in some circumstances, such as when the Defendant is an out of state motorist, or when the Defendant is an in state resident at the time of the accident, but moves out of state before the lawsuit is filed, you may file the action in the county where the accident happened or the county where the Plaintiff resides, pursuant to either the Georgia Out of State Motorist Act or the Georgia Long Arm Statute. 3.Please note that since the Plaintiff has the burden to prove his or her case within a preponderance of the evidence (more likely than not), the Plaintiff always gets to go first throughout the course of the trial. 4. Note that the some cases, mostly in State Court, the jury may consist of six jurors. 5. State Farm and Allstate are statistically the two standard insurance companies who are making the lowest offers. Also, please note that there are several factors the insurance companies will take into effect in settling your case other than the amount of your medical bills. i.e. the amount of property damage done to your vehicle, the jurisdiction in which the case will be litigated, the demographics of the Plaintiff and Defendant and most importantly whether you have an attorney. Insurance companies invariably will offer claimants more money if they are represented by an attorney, because the insurance adjuster realizes that the attorney is working on a contingency basis. 6. Please note that this example is based upon you, the claimant, not having medical payments coverage. If you have that coverage, your bills should be paid and you would received $2,100.00 for your pain and suffering not $100.00. I highly recommend you get this coverage. 7. This verdict range of $4,000.00 is based upon statistical data provided by the Georgia Trial Reporter. The Georgia Trial Reporter reprints all jury verdicts returned in the five metro Atlanta areas, counties, i.e. Fulton, Gwinnett, Cobb, DeKalb and Clayton. 8. Pain and suffering is a very subjective element of your damages. You must base this number upon the degree of suffering you have endured since the time of the accident, and may also include your present and future pain and suffering. The above contains general information and is not tailored to a specific legal problem; it should not therefore, be considered legal advice. Do not try to use this information without consulting an attorney to learn how the law affects your unique circumstances. |
| Deming, Parker, Hoffman, Campbell & Daly, L.L.C. |
| Attorneys At Law Since 1974 |
| 770-564-2600 Metro Atlanta 912-527-2000 Savannah |
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| Copyright ©2008 by Deming, Parker, Hoffman, Campbell & Daly, L.L.C. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include the above copyright notice. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. |
