Understanding Personal Injury Claims
People who have been injured in motor vehicle accidents and who incur medical bills or lost wages often have questions about their rights. The information below answers many of those questions. It describes the steps required to seek compensation for auto accident injuries, either with or without a lawsuit, and how the amount of that compensation is determined. It also addresses the roles of those involved in these cases: witnesses, insurance companies, insurance adjusters, physicians, lawyers, judges, and juries, to name a few.
Although this information focuses on auto injury claims, much of the discussion describes the legal procedures that also apply to other types of bodily injury cases.
The lawyers in our firm have worked to help southeastern Minnesotans obtain fair compensation for bodily injuries since 1933. Today, six of our lawyers work in the bodily injury area. Two of those attorneys are certified as experts by the National Board of Trial Advocacy. Five are certified by the Minnesota State Bar Association. Two of our paralegal professionals work on personal injury cases. Information about the lawyers in our office who handle bodily injury cases is found under their names on our website.
If after looking through this information you have questions for us, please call or stop by our office in Rochester. We enjoy talking about our work.
O'BRIEN & WOLF, L.L.P.
1. The American Justice System
Today, as it has for centuries, our justice system permits people injured by the fault of others to seek compensation. Such claims aim to require the at-fault person to pay a sum of money, known as “damages,” to the person who has been hurt. The idea is that the one who is responsible for the harm should pay for its consequences.
The law cannot give an injured person back his health or take away his pain. But it can attempt to make up for the injury by ordering the person at fault to pay medical bills, lost earnings, and compensation for pain, disability, and disfigurement.
Usually, the “fault” in an auto collision case is of the type known as “negligence.” The negligent driver did not intend to hurt anyone. But he failed to drive with what the law refers to as “ordinary and reasonable care.” If someone was hurt by that negligence, and if the injury is serious enough, our law permits a damages claim to be made against the negligent motorist. And the law requires drivers to carry “liability” insurance to pay damages to people injured by negligence.
In some cases, the injured person was also negligent and partially at fault for the collision. We have a “comparative fault” system. If the claim comes before a court for trial, the fault of all people whose negligence contributed to the injury will be compared, and a percentage will be assigned to each. The percentages will add up to 100%. Thus, an injured person may recover some damages even if he is partially at fault for his own injury. However, the damages he can recover will be reduced by the percentage of negligence assigned to him. For example, if he is found 25% at fault, he is permitted to recover 75% of his money damages.
But if the injured person is found to be more at fault than the other driver, he is completely disqualified from recovering damages. In other words, if he is 51% or more at fault for causing his own injury, he can recover no money damages from the other driver or the other driver's insurance company.
Most bodily injury cases do not go before a court for trial. Most are “settled out of court” through negotiation between the people involved, the insurance company, and their lawyers. These negotiations are based, in large part, upon the parties' best estimate of the likely outcome if the case were tried. And negotiations are motivated by the fact that if the case is not settled, it will go to trial.
No one would claim that the American civil justice system is perfect. It is difficult, for example, to place a dollar value on pain, or on a disfigurement that will remain for a lifetime. But it is certainly the best way that anyone has yet devised to fairly place the burden of bodily injuries on the people who cause them.
2. At the Accident Scene
An automobile accident is a startling event. But what to do at the scene is a matter of common sense and “first things first.”
Any driver involved in the accident must stop and remain at the scene until he has identified himself to the investigating officer. Leaving the scene of an accident without a sufficient justification is a serious criminal offense. If it is possible without unnecessarily obstructing traffic, the vehicles should remain in the positions at which they came to rest after the accident until law enforcement arrive. This allows the investigating officer to better understand what happened.
First aid or other immediate medical assistance should be given if the circumstances call for it. Minnesota law provides some protection from liability for volunteer “good samaritans” who render emergency care at an accident scene. If others are in danger of further injury at the scene, steps should be taken to protect them. For example, highway traffic approaching the scene should be warned, if possible, of wreckage in the roadway ahead.
The police, sheriff, or highway patrol should be summoned and an ambulance called if necessary. A driver involved in the accident is required by law to give his name, address, birthdate, and his vehicle registration number to any driver or passenger of another involved vehicle. He must also show his driver's license if requested. The same information will be requested and recorded by the investigating officer. Any person hurt in the accident, even if the injury is apparently slight at first, should tell the officer about it.
Aside from providing this information, persons involved in the accident need not talk to anyone at the scene if they do not want to. Drivers should not hastily admit fault for the accident in the excitement of the situation; there may be facts they do not yet know which reveal that others bear or share responsibility.
If other persons at the scene talk about the accident, it is wise to pay close attention to what they say, and write it down later. The names and addresses of other drivers, passengers, and pedestrians who witnessed the accident should also be requested and recorded for later reference. Sometimes important information about a collision is lost because no one thought to write down the name of a witness who saw the whole thing, but who later cannot be located.
Drivers involved in accidents involving bodily injury or property damage of $500 or more must send a written report about the accident to the Minnesota Department of Public Safety within ten days. These reports are made by filling out special forms prepared by the Department. Often the investigating officer provides a blank form to the drivers at the scene. A driver who did not receive the report form from the officer, however, may pick one up at the local police department or state patrol office. The driver's report to the Department of how the accident happened is confidential and will not be shown to others, nor used as evidence against the driver in any court proceedings.
3. Medical Attention
Of first importance to anyone injured in an automobile accident is the need for medical care. Some injuries are immediately severe. Others that seemed minor at first linger or worsen over time. The injured person should seek early medical care, and follow up with periodic visits to the doctor if symptoms continue. A physician who is familiar with the history, course and duration of the injuries will be best able to determine what is wrong, whether the accident caused the injuries, whether they can be treated, and how long symptoms may be expected to continue.
The best thing that can happen is for the injuries to heal completely, because no amount of money damages can ever fully compensate for a permanent, painful injury. Unfortunately, some accident victims are not so lucky as to have a complete recovery from their injuries.
4. Minnesota's “No-Fault” System
THE RIGHT TO “NO-FAULT” BENEFITS
In Minnesota, early medical care for auto accident injuries is paid for by “no-fault” insurance. All Minnesota drivers are required to have “no-fault” insurance. This is the “personal injury protection” or “PIP” coverage contained in your auto insurance policy. It covers the first $20,000 of your medical expenses, and $20,000 of your lost wages (and certain other losses) caused by your own auto-related bodily injuries.
For example, if Smith is hurt in an auto accident caused by Jones' negligence, Smith's own no-fault insurance will pay for Smith's medical bills up to $20,000. Jones' no-fault insurance pays Jones' medical bills. If Smith was a passenger without his own automobile insurance, his medical bills are paid by the no-fault insurance of the car in which he was riding. This coverage is called “no-fault” insurance because it pays regardless of who was at fault for the accident.
It may seem odd at first glance that Jones' liability insurance does not pay for Smith's initial medical bills and wage loss. Jones, after all, caused the accident. And as we stated earlier, our justice system usually requires the party at fault for the accident to pay for the losses that result.
Minnesota's no-fault system, however, creates a limited exception to that general rule, and it does so for a reason: It ensures that initial medical bills are promptly paid and that a portion of lost earnings and other typical losses are compensated quickly, without awaiting the outcome of lengthy legal proceedings that may be necessary to determine “fault.”
At least that is how no-fault benefits are supposed to operate. Sometimes, however, the injured person's no-fault insurer refuses to pay benefits. The insurer might claim, for example, that a particular medical or chiropractic treatment the injured person has received was not reasonable or necessary to treat the injury; or that the wage loss is less than the injured person has claimed.
If such a dispute between the injured person and his no-fault insurer arises and is not settled through negotiation, it must be resolved either through “arbitration,” or by a lawsuit against the insurer. Arbitration is a procedure for deciding disputes that is less formal and often quicker than a lawsuit in court. Arbitration of a no-fault claim is required if the amount of benefits in dispute is $10,000 or less. If it is more, a lawsuit can be brought against the no-fault insurer.
Unfortunately, either arbitration or a lawsuit takes time to be completed. Disputes of this kind between the no-fault insurer and its policyholder do not happen in every case. But when they occur, they cause frustrating delays in obtaining benefits. Any lawyer experienced in handling bodily injury cases has seen many of these disputes, and will assist the client in claiming and obtaining all the no-fault benefits to which he is entitled.
CONDITIONS FOR A LIABILITY CLAIM
As we have seen, Minnesota law makes no-fault insurance benefits immediately available to all persons injured in automobile accidents, regardless of fault. But no-fault insurance does not pay for all of the types of damage which the law has traditionally recognized in bodily injury cases. For example, no-fault insurance pays no benefits for the pain and emotional suffering caused by an injury, nor for its disfiguring or disabling effects.
To recover for these types of damage not compensated by no-fault coverages, it is necessary to make a liability claim against the driver(s) whose fault caused the accident. However, the no-fault law allows such liability claims to be made only in cases of more serious injury; cases which satisfy any one of the tests known as “tort thresholds.” They are:
* Value of medical care for the injury exceeds $4,000, or;
* The accident causes death, or permanent injury or disfigurement, or;
* The injury results in disability of 60 days or more.
Let's return to the example we discussed above. Smith has been injured and has received no-fault medical and wage loss benefits from his insurer. But that does not compensate for his pain or the disfigurement the injury causes. If Smith's case meets one of these threshold tests, he can then make a liability claim against Jones for all of the damages resulting from his injury. That claim would include elements of damage left uncompensated by Smith's own no-fault insurance; pain, disfigurement, loss of future earning capacity, and emotional distress. And these damages would be paid by the liability coverage of the insurance policy carried by Jones, the at-fault driver. Smith could make a liability claim against any driver whose fault contributed to his injuries, including a spouse or other family member whose negligent driving caused the accident; family relationship and affection do not provide immunity from responsibility for damages.
If Smith's case did not meet one of the threshold tests, he could not obtain compensation for pain, emotional distress, and so forth. He would be limited by Minnesota law to the no-fault benefits he recovered from his own insurer. He would not be permitted to make a claim against Jones and Jones' liability insurance company for any further damages.
Sometimes it takes a year or more from the accident to know if one of these threshold tests has been satisfied. This is particularly true where the question is whether the injury will have permanent effects. Physicians often feel that for certain typical auto accident injuries, they cannot reliably forecast permanency until treatment and nature have had ample time to produce their own healing effects.
These threshold tests for a liability claim apply only in motor vehicle injury cases. Other types of bodily injury cases have no such minimum requirements in order for the full range of damages to be sought.
5. Investigators and Settlement Offers From the Liability Insurer
People injured in auto collisions are sometimes contacted soon after the accident by investigators or adjusters employed by the liability insurance companies covering the automobiles and drivers involved. If the injured party was himself driving, he must cooperate with his own insurance company's investigation on his behalf. But he is not required to speak with anyone else about the accident or his injuries.
Most experienced attorneys would advise the accident victim not to speak with an investigator working for another driver's insurance company. The job of that investigator is not to help the injured person get fair compensation. Rather, it is to reduce or completely avoid that insurance company's responsibility to him for money damages. Mistakes and miscommunications can occur in an investigator's questioning. Those mistakes will later be used against the injured person's claim. Simply declining to talk to the investigator avoids that problem.
A liability insurance adjuster might offer a money settlement to the injured person, asking him to sign a document called a “release” in exchange for that money. The adjuster may claim that it is an advantage to the injured person to settle his claim without consulting a lawyer, because that eliminates an attorney's fee.
There is nothing wrong with hearing the liability insurer's offer. We often encourage potential clients to do exactly that. But accepting the money and signing the release without consulting experienced counsel is usually unwise for at least three reasons.
First, although the insurer's offer may seem large, most people do not know what amount would actually be reasonable to compensate their injuries. An experienced lawyer knows of damages amounts that have been paid by insurance companies or awarded by courts in similar cases. The seemingly large figure offered by the insurer may in fact be much too small.
Second, if a settlement offer is made only a few weeks or even months after the accident, the full extent of the injury may not yet be known. Once a settlement is accepted and the claim released, there is in most cases, no opportunity to obtain more money from that company if the injury worsens or does not go away as expected.
Third, accepting a settlement and giving a release to one negligent driver may reduce or even eliminate the injured person's right to recover damages from another person who is also at fault. That is true even though the release document refers only to claims against one person. This is a hidden danger of signing a release.
An injured person should take the adjuster's offer to a lawyer to discuss it. Many experienced attorneys will evaluate the offer without charge. If it is not too early to evaluate the claim, the lawyer will tell the accident victim whether the offer appears reasonable, and whether it makes sense to accept it.
Further, if the offer does not appear adequate, some lawyers would be willing to take the case and base their fee only on any money recovered in excess of the offer already made. This ensures that the client will not pay any attorney's fee on the part of the recovery they were offered before the attorney became involved.
Whether it is an investigator asking questions about the accident, or an adjuster offering a settlement payment and release, contacts by a liability insurer are a sure sign that it is time to get legal advice.
6. Early Legal Advice
It is advisable for the injured person to consult with and hire (“retain”) an experienced attorney early on. There are several reasons.
First, damages claims for bodily injury can only be pursued within particular periods of time, known as “limitations.” These limitations periods are set by state law. A claim is lost forever if it is not started before the limitations deadline.
The limitations period for most bodily injury claims in Minnesota, including most auto accident cases, is six years from the date of the injury. However, there are much shorter periods for some types of injury claims. Some are only two years. If a Minnesotan is hurt while driving in another state, that state's limitation may apply to any claim, and it could be shorter than Minnesota's.
Further, Minnesota law requires that advance notices must be given for some types of claims. Some are required as early as 180 days from the injury. To be sure that limitations or notice deadlines do not become a problem, it is wise to contact a lawyer as early as possible.
Second, accident claims should be promptly investigated. The police investigation of automobile accidents is often helpful, but it is not intended to go into all of the facts that are important to a damages claim. Retaining an attorney soon after the accident allows the lawyer's investigator to question witnesses while memories are still fresh, take photographs, and gather physical evidence while it is still available. Important evidence can be lost in a brief time.
Third, the injured person may need the help of someone with a thorough understanding of Minnesota's no-fault system in order to protect his rights to full no-fault benefits. The system can be complicated. Most people need a lawyer's guidance to fully understand how it applies to all but the simplest of situations.
For these important reasons – and for another that we will discuss in the next section – it is important to get legal counsel at the earliest possible date.
7. Hiring an Attorney
More than 22,000 lawyers are licensed to practice law by the State of Minnesota. But not all lawyers have the experience, know-how, and resources to handle bodily injury cases effectively. Selecting the right lawyer to handle a bodily injury case is important, but it is not difficult if one knows what to look for and the right questions to ask.
DOING YOUR HOMEWORK
If you've been injured, you'll want to be sure to hire a lawyer experienced and capable in bodily injury cases. The lawyer who did a good job drafting your father's will, or closing your friend's house purchase may not be the right attorney to take on your personal injury claim.
To begin identifying qualified bodily injury lawyers in your area, you may wish to do some “homework” by first consulting the Martindale-Hubbell Law Directory. You will find the directory at your local county law library or public library reference department.
The Martindale-Hubbell Law Directory is used by attorneys themselves and others who need to choose lawyers in towns and states where they do not already know an attorney or law firm. The directory is indexed by city and state, allowing you to turn straight to information about lawyers near your home. The directory describes lawyers' educations, backgrounds, and practices. It tells what firms they are in, and what kind of work those firms do. The descriptive phrases “trial practice,” “litigation,” “personal injury,” and the like indicate lawyers and firms that may handle bodily injury work.
The Martindale-Hubbell Directory also rates lawyers' legal ability on a scale of A, B, and C, as well as their adherence to professional standards of conduct and ethics, reliability, and diligence. Law firms are also rated in the directory according to the ratings and ability of their members. Spending a few minutes with the Martindale-Hubbell Directory will give you valuable background information and a head start in determining a lawyer's qualifications to handle injury claims.
EXPERT CERTIFICATION
An important item to find out about the lawyer you are considering hiring is whether that attorney is certified as a civil trial specialist. In recent years, the legal profession has begun providing expert certification programs in several fields of the law, including civil trial law. Civil trial lawyers are the attorneys who handle bodily injury cases, among other types of matters. Civil trial certification ensures that the lawyer has the necessary expertise and experience to effectively handle bodily injury matters.
Civil trial certification in Minnesota is available either through the National Board of Trial Advocacy, or the Minnesota State Bar Association. To be certified under either program, a lawyer must have passed a written examination testing his knowledge of civil law, case strategy, and ethics. In addition, he must have tried a number of cases and have had other civil litigation experience. Of the two programs, the National Board of Trial Advocacy certification requires a greater amount of professional experience. Only about 400 Minnesota lawyers (1.8% of Minnesota's licensed lawyers) are certified under either of these programs as civil trial specialists.
INTERVIEWING THE LAWYER
When interviewing a lawyer ─ you may wish to speak with several attorneys before hiring one ─ the potential client should ask the attorney about his experience in handling bodily injury matters; about certification as a civil trial specialist; about the attorney's past success in injury cases settled or taken to trial; about the amount of the attorney's practice devoted to bodily injury cases; and whether he usually represents claimants or defendants. Further, the potential client should ask about investigative and paralegal assistance available in the lawyer's office to adequately and promptly handle the claim. The potential client should not be bashful about asking questions. Qualified attorneys welcome questions about their work and experience.
SOME CAUTIONS TO KEEP IN MIND
Caution #1: These days lawyer advertising seems to be everywhere. We even do some of it ourselves. But no potential client should make the mistake of hiring an attorney based solely upon a clever or eye-catching advertisement. It may be fine to choose a detergent from a television commercial, or order flowers based on a yellow pages ad. But TV and telephone books are no way to choose a capable professional whose judgment and skill you will rely on to successfully handle important legal work.
Caution #2: Some law offices attract clients by giving the impression that a prominent attorney in the firm will personally attend to the case, when in fact the work will be done by a less experienced associate or correspondent. Be sure to find out who will be actually handling your case, particularly if a trial becomes necessary.
Caution #3: Another practice employed by some firms is to use heavy advertising to attract more cases then the office can possibly handle effectively, with the result that individual claims do not receive the attention, nor reach the outcome, that they merit. The potential client should discuss with the lawyer the amount of time and effort the attorney is in fact prepared to spend on the individual case, and how the lawyer views the overall economics of the case, both from the client's and lawyer's standpoint.
FEES AND COSTS
Attorneys typically charge for their work either on an “hourly” or on a “contingent” fee basis. An hourly fee means that the lawyer charges an agreed dollar amount for each hour he devotes to a case. Often a “retainer” (a prepayment of a portion of the fee) is required at the beginning of the hourly work, and fees are billed as the work progresses. The hourly fee is owed whatever the outcome, win or lose.
If a client requested that a bodily injury case be handled on an hourly fee basis, and if the client could afford that arrangement, most lawyers would gladly comply. But these cases sometimes involve tens of thousands of dollars of attorney time. Most people would find it difficult to pay such fees as they were incurred. And the fact that those hourly fees are owed even if the case is lost or the damages recovered are small, presents a risk that many clients would be hesitant to take.
For these reasons, most bodily injury cases are taken on a “contingent” fee basis. This means that the attorney's fee is paid only if and when money damages are recovered. The fee is “contingent” upon recovery being made; if there is no recovery, no attorney's fee is owed. In recent years, contingent fees have been criticized by some insurance companies and others who would prefer to discourage bodily injury claims. Without the contingent fee, however, many Minnesotans who have legitimate personal injury claims would be unable to afford the legal help necessary to effectively seek the damages they are owed.
The contingent fee is usually a percentage of the damages recovered, typically between 33 1/3% and 40% for auto collision cases. Sometimes lawyers charge higher percentages for more complex kinds of cases; for example, products liability or medical malpractice. All law offices that handle bodily injury cases offer contingent fees, and the typical one-third contingency has been the industry standard in auto cases for decades.
Attorney's fees are not the only cost incurred in making a personal injury claim. Out-of-pocket expenses necessary to pursue the claim are separate from the attorney's fee. Examples of such costs are court filing fees, stenographer charges for depositions, and the sheriff's fee for serving legal papers. In typical auto accident cases, the total amount of such expenses is relatively small. However, in more complex cases requiring expert testimony, these expenses can be greater.
How these expenses are handled varies from law office to law office, and the client should be sure to discuss such expenses with any lawyer he is considering hiring. For example, some attorneys would be willing, in most cases, to advance all or part of these costs on their client's behalf, to be repaid when a recovery is made. Other lawyers may not be willing to do so. The potential client should find out at the outset if the lawyer he is considering hiring will advance these costs, and if not, how much money the lawyer thinks the client will have to invest to pay these costs.
The client should also find out whether the lawyer he is considering hiring will expect the client to repay advanced costs if no recovery is ultimately made, or if the recovery is less than the advanced costs. The fact that the lawyer makes his fee contingent upon a recovery does not necessarily mean that repayment of advanced costs is also contingent. Some law offices would agree, in certain circumstances, not to be repaid in the event of no recovery. Others would require repayment. This is an especially important question for the client in cases in which the likelihood of a recovery is particularly uncertain. The client should clearly understand his obligation for such expenses before signing a retainer agreement with the lawyer.
Most law offices take their percentage contingent fee directly from the total recovery, and then require the client to repay the firm its advanced expenses from the client’s portion of the recovery.
8. Beginning to Develop the Case
The lawyer's work for his client begins as soon as he is hired. The lawyer will handle all further communications with the liability insurance company. He will ask the client to sign authorizations allowing his office to begin gathering medical, employment, and police investigation information important to the claim. The lawyer's office will begin investigation, including viewing and photographing the accident scene and automobiles, talking with witnesses, and reviewing police and accident reports.
The lawyers in our office ask bodily injury clients to begin jotting notes in a journal regarding the progress of their recovery, and the status of any continuing pain and disability. Because the legal process often goes on for many months, notes of this kind are important to help the client and lawyer later prepare accurate testimony about the injury, its effects, and the course of recovery.
Sometimes parties other than drivers are responsible for auto collisions. For example, if a drunk driver was involved, the tavern which served him liquor may be liable to the persons he injured. This type of claim is known as a “dram shop” claim. Taverns usually have insurance coverage to pay such claims. More rare is an auto accident caused by a defective roadway, or by defective signing or marking of the roadway. In such cases, the state or local government may be responsible for damages. The lawyer looks into these possibilities, and gathers information necessary to make a claim against the responsible parties.
9. Negotiation
Once the full extent of the injury is known, and one of the threshold tests for a liability claim is satisfied, negotiation with the negligent driver's liability insurance company may begin. The facts important to the negotiation include the severity of the injury, the amount of the negligence of the at-fault driver, the dollar limits of that driver's insurance policy, and the amount of fault the injured person bears for his own injury. The lawyer consults closely with his client in determining the amounts of offers and counter offers made in these settlement negotiations.
The decision as to the amount the injured person will accept in settlement is the client's alone. The lawyer's job is to advise and guide the client as to a reasonable expectation for a damages recovery. This guidance is based on the attorney's knowledge of what juries and judges have decided in similar cases, and what they might determine if asked to decide this case. However, the ultimate decision to settle (or not settle) the claim at a particular figure is the client's, not the lawyer's.
Settling a case with the negligent driver requires the injured person to sign a “release,” giving up all claims against that driver. The important thing to understand about a release is that once it is signed in exchange for a settlement payment, no further claims against that party concerning this accident are possible. This is true even if the injuries later turn out to be more severe than originally thought.
Negotiation often occurs before a lawsuit is formally started. Sometimes cases are settled without a lawsuit ever beginning. This can be a good outcome, because it saves expenses and means that the injured person will have his compensation more quickly. However, liability insurers are often unwilling to make satisfactory settlement offers before suit. In those cases, a lawsuit must be brought.
10. Beginning the Lawsuit
The lawyer for the injured person starts the lawsuit by having a “complaint” delivered to the negligent driver. The complaint is a document stating the injured person's claim. The injured party is known in the complaint and the lawsuit as the “plaintiff.” The persons he claims are responsible for his injuries are “defendants.” The defendant driver will be represented in the lawsuit by a lawyer hired by the defendant's insurance company.
The beginning of the lawsuit does not necessarily end settlement negotiations. Settlement talks may well continue, and in fact can continue all the way to trial and beyond, as the facts of the case unfold in the legal process.
11. Discovery
Lawyers for the injured plaintiff and the defendant driver find out more facts about the accident and injuries in a formal investigation process known as “discovery.” Discovery is governed by legal rules. It begins when the lawsuit starts. Up to that point, the lawyer has learned what he can from physical evidence and from talking with witnesses willing to discuss the case. But some witnesses, including the negligent driver, may refuse to talk to him. In discovery the defendant (and others who may not have willingly cooperated) can be required to give information they would not have voluntarily provided.
Discovery typically begins with each side sending written questions, called “interrogatories,” to the other side for answers. These questions are prepared by the attorneys. They ask about the accident (for example: How fast were you going? Did your car have mechanical problems which caused the collision?), insurance coverage, witnesses, and other topics. The attorneys also assist their clients in responding to the other side's interrogatories.
Interrogatories are usually followed by “depositions,” face-to-face questioning of the plaintiff and defendant by the attorney from the other side. The questions and answers at depositions are taken down by a stenographer, and made into a transcript of what was said. The parties' attorneys help them prepare for deposition testimony, and are present at the deposition to see that their clients are treated fairly.
Discovery also allows the defendant's insurance company to have the plaintiff examined by a doctor chosen by the insurance company, at the company's expense. This is an “adverse medical examination.” It allows the insurance company to evaluate the severity of the injury without taking the plaintiff's doctor's word for it. The insurance company's doctor may testify for the defense at trial, disputing the plaintiff's claims regarding the seriousness or duration of his injury.
The time necessary for discovery to be completed varies, depending on the complexity of the case. It can take several months, or a year or more in cases involving more information and witnesses. Settlement negotiations may continue during discovery. Sometimes facts that turn up in discovery greatly affect the negotiations. For example, if defendant Jones had previously denied fault, but then admits in his deposition that he may have run the red light after all, plaintiff Smith's negotiating position would be greatly strengthened.
12. Trial
If a negotiated settlement of the case is still not reached by the time discovery is completed, the matter may be scheduled for trial. Due to crowded court calendars, it is often several months between the scheduling of a case for trial, and the actual trial date.
Part of that time is spent in trial preparation. The plaintiff's lawyer will obtain the plaintiff's doctor's medical testimony, often by videotape, for presentation at trial. The attorney will also decide which witnesses to use for trial testimony, and will carefully prepare those witnesses, including the plaintiff, for that testimony.
Settlement negotiations frequently intensify shortly before trial. It is then that the parties are most focused on the proof that supports (and disputes) their claims and on the possible outcome before the jury. Perhaps 90% of all bodily injury claims reach a negotiated settlement without being tried. This often occurs in the weeks or days immediately before the scheduled trial date.
However, some matters never do reach a negotiated settlement. These matters must go to trial. Most bodily injury cases are tried to a jury. In Minnesota state court, a civil jury consists of six citizens who live in the county in which the case is tried. Trial begins with a jury selection process that ensures that the jurors who hear the case are not acquainted with the parties or attorneys, and are not personally familiar with the facts of the case. Attorneys for both sides question potential jurors to determine if they would be able to fairly determine the case. Those potential jurors who indicate a bias may be removed from the panel by the judge or by the parties.
Once the jury is selected, the plaintiff's lawyer begins presentation of the plaintiff's proof. Part of the proof describes the collision and how it occurred. This evidence may include the testimony of bystanders who saw the accident, police officers who came to the scene to investigate, and the plaintiff and defendant themselves. In a civil claim, the plaintiff's lawyer is allowed to call the defendant as a witness in the plaintiff's case.
The plaintiff's attorney will also present witnesses to describe the plaintiff's injury and its impact on him. These would include not only the plaintiff's doctor, but family members and others who have seen the effects of the injury on the plaintiff's everyday life. The plaintiff will be called upon to tell the jury about his pain, disability, and the other ways the injury continues to affect him.
The defendant's attorney may question any of the plaintiff's witnesses. This is called “cross examination.” Further, when plaintiff's counsel has finished presenting all of the plaintiff's evidence, the defense attorney may then offer the testimony of witnesses for the defense. The plaintiff's lawyer may cross examine the defense witnesses.
The plaintiff has the “burden of proof” on most issues in a bodily injury case. This means that for the plaintiff's case to succeed, his evidence must convince the jury that it is more likely than not that the defendant driver was at fault, and that the collision caused the plaintiff damages. The defendant, on the other hand, has the burden of proving that the plaintiff was at fault.
After all the evidence has been presented, the attorneys make “final arguments” to the jury. The defendant's counsel argues first, followed by plaintiff's counsel. Each attorney points out the evidence favorable to their client's case. The plaintiff's lawyer also typically suggests dollar figures to the jury that, in his view, would be appropriate compensation for the various aspects of his client's injury. The jury is then instructed by the judge on the law that applies to the case. Those instructions include definitions of important legal terms such as “negligence,” and explanations of the various items of bodily injury damages which the jury is to address. When those instructions are completed, the jury deliberates in private.
The jury is required to fill out a verdict form that asks a number of questions. Jurors will decide what sums will fairly compensate the plaintiff for his injury, including his pain and disability, and the effect it has on his ability to earn a living. The jury is also asked to decide who is at fault for the injury, and if more than one person is at fault, what portion of the negligence each bears. When the jury has answered these questions it returns the completed verdict form to the court and is permitted to go.
13. After the Verdict
Once the jury has returned a verdict, a plaintiff or defendant dissatisfied by the jurors' decision may ask the judge to order a new trial, or to substitute the judge's own decision for the jury's. Such action by a judge is proper only in rare cases. Only where a serious mistake has been made in the trial is a judge required to order a new trial. And only where the verdict is unreasonable may a judge substitute his own decision for it. For that reason such requests, although frequently made, are rarely granted.
A party dissatisfied with the trial result may also appeal the verdict to the Minnesota Court of Appeals. There he may again ask for a new trial, or for the appeals court to substitute its decision for that of the jury. But here too, such judicial action is rarely appropriate and rarely granted.
It is important to understand that an appeal is not another trial. No new evidence is presented. The appeals court simply reviews the trial record to make sure that no serious legal mistakes were made, and that there was evidence reasonably supporting the verdict. It is infrequent that a jury's decisions on negligence or damages are overturned on appeal.
The jury's verdict results in a court judgment for the amount of damages that the injured person is entitled to recover from a defendant. The court may add to that judgment certain costs that have been incurred by the plaintiff in pursuing the claim. Those would include items such as court filing fees and mileage for trial witnesses. Also, interest on certain types of past damages may be added to the judgment.
The defendant driver's liability insurance pays the judgment up to the dollar limit of its coverage. If the damages the plaintiff is entitled to recover exceed the liability insurance, the injured person may attempt to collect from the defendant's personal assets. This would include his bank account, non-homestead real estate, and other types of non-exempt property or income. The problem in such cases, however, is that once the insurance coverage is paid, many drivers have few significant assets from which to collect damages.
14. Underinsured and Uninsured Motor Coverage
To deal with the situation of damages exceeding liability insurance, the legislature requires that Minnesota auto insurance policies include “underinsured motorist coverage.” This insurance, like no-fault coverage, is insurance that one buys for one's own protection. Its purpose is to compensate damages caused by a motorist whose liability insurance coverage is too small to fully pay the injured person's losses. Such a driver is an “underinsured motorist.”
For example, if a jury decides that Smith's damages are $100,000, but Jones' liability insurance limit is only $30,000, Jones is an “underinsured motorist.” If Smith has underinsured motorist coverage in the amount of, say, $100,000, that underinsured motorist coverage will pay Smith the $70,000 portion of his damages which Jones' insurance was inadequate to pay.
Minnesota drivers may legally carry liability insurance with limits as small as $30,000 per person. That is an amount much too small to adequately compensate serious permanent injuries. For that reason, it is important for Minnesota drivers to buy adequate underinsured motorist coverage for their and their family's protection. This coverage is relatively inexpensive. Motorists should discuss it with their insurance agents.
Minnesota automobile policies are also required to contain similar coverage for injuries caused by drivers who are not carrying legal liability coverage. This is called “uninsured motorist coverage.” This coverage also applies when the accident was caused by a hit-and-run motorist who is never identified.
Proper handling of claims for underinsured and uninsured motorist coverage can be complicated. Disputes can occur between an injured person and his insurance company regarding the fair amount of compensation for injuries caused by an underinsured or uninsured motorist. Such a dispute may require arbitration, or even a trial in the courts, to determine the amount to which the injured person is entitled from his insurer. The need for proper handling of these claims is another reason it is so important for injured persons to hire an attorney experienced in bodily injury matters.
15. Distributing the Recovery
The insurance company check paying the settlement or judgment is typically made payable to the injured person and to his lawyer. It is sent by the insurance company ─ or its lawyer ─ to the plaintiff's attorney, with the release and any other documents necessary to conclude the case.
As we discussed earlier in Part 7, law firms' agreements with their clients regarding the recovery of expenses advanced by the firm during the litigation differ. Those differences affect the mechanics of the settlement distribution.
Our firm distributes money recoveries in contingent fee cases as follows: First, from the total recovery, the attorney’s fees are paid. Second, the expenses advanced by the firm are repaid. The amount remaining after payment of the attorney’s fees and expenses is distributed to the client.
For example, let’s assume that Smith’s bodily injury case is settled for $18,000, and the firm has advanced expenses of $3,000 in the case. The firm’s typical 33 1/3% contingent fee entitles the firm, in that case, to a fee of $6,000. Then, the firm is reimbursed for $3,000 of expenses it advanced on behalf of Smith. The amount remaining, $9,000, is distributed to the client.
Distribution of the monies recovered concludes the lawyer’s work in a typical bodily injury case.
CONCLUSION
This is a summary of what is involved in pursuing a bodily injury claim arising from an automobile accident in Minnesota. This system is not a perfect or exact mechanism. No system that attempts to compensate bodily injuries with money damages could be. But most of us who have seen it work over a number of years and in a number of cases believe it does a good job of achieving fair results.
If you have further questions, or if we can be of assistance to you in any way, please call upon us.
O'Brien & Wolf, L.L.P.
“Lawyers Who Make A Difference”
This website contains general information and not legal advice. It is based on
Minnesota law in effect at the time of writing. An O’Brien & Wolf lawyer can advise
you about how the law applies to your specific situation.
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