BRILL & RINALDI, The Law Firm

Weston, FL – Miami, FL – Daytona Beach, FL

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Anatomy of a Lawsuit Part 1

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What to Expect

Very often we find that clients who have a valid claim or ongoing lawsuit do not really know what to expect.  It may seem that the process drags on forever, or that things aren’t really being pursued.  We hope to dispel that perception.

We understand that being on the “outside” of a lawsuit looking in has a different perspective than being smack in the midst of it.  We also understand that it can be difficult to be patient when the bills are stacking up and there is no money coming in, but a little patience is needed.

Let’s Start at the Very Beginning

The event that started this process in motion is likely a traumatic one that caused injury, whether a motor vehicle accident, an injury sustained on a cruise ship, a botched medical procedure or some other type of event.  Injuries were incurred, and along with them, medical expenses, lost wages, perhaps even future earning potential.  You think you should be compensated for these injuries, and in certain circumstances, the law agrees with you.

You start by finding an experienced personal injury lawyer who (hopefully) has a good record of results for their client.  Most offer free initial consultations, and then the attorney will assess your situation and determine if they think you have a case that should move forward.  Keep in mind that just because an injury occurred, it doesn’t mean that compensation is available.  The attorney must look at the elements of the law necessary for recovery, and see if there is a viable connection and a basis for recovery.

Sometimes even this initial investigation can take some time, especially if documents need to be gathered from other sources, such as police reports.   The attorney will look at such things as how long ago the event occurred (to make sure the statute of limitations hasn’t expired), the liability issue (is someone or some business responsible for the injury), what insurance coverage is available and other important items, such assessing the damages that have occurred.

Let’s assume for the moment that the attorney has agreed to take your case.  You sign the retainer letter, which is the document officially hiring the attorney or firm, and work commences on your case.

Next Step

If you are pursuing a medical malpractice case, there are a number of pre-suit steps that must be taken before the actual filing of the lawsuit.  These pre-suit regulations can add time to the process.

Your attorney will now formally have the event investigated to help determine liability of the other party and any potential defenses they might have.  There may be an investigator taking witness statements, or investigating the scene of the accident or event.  They also gather medical information and wage information to help determine what amount are your actual losses.

Once the injured party has achieved what is known as Maximum Medical Improvement (MMI) in recovery, the attorney can assess any amount of permanent disability and pain and suffering.

The Demand Letter

In the early stages of litigation, the demand letter is an important tool.  A carefully crafted demand letter sets out to the other side (usually an insurance company) the details of the traumatic event, why the defendant should be held liable, and the damages sustained.  This demand letter sets the tone for the future negotiations.  It is important that the strength of the case is conveyed, in order to convince the insurance company to meet our demands.  Usually these letters have a clause that a response within a certain time is required to avoid filing suit.

What usually happens is that the insurance company’s lawyers then set out to independently investigate the incident, to find any potential weakness in the case.  Then the negotiations commence in earnest.

Settlement Discussions

It may surprise you to learn (!) that insurance companies don’t often just pay out the first amount demanded by your attorney.  It may also surprise you that nationally, only 4% to 5% of personal injury cases actually get to trial – the vast majority settle out of court.  This means lots and lots of cases are in the negotiation stage, sometimes for a while.  Insurance company tactics are often to try to wear the plaintiff down by prolonging the process.

In Florida, there is a great incentive to settle out of court.  In an effort to reduce the amount of litigation and encourage early settlement of claims, the Legislature has passed a few interesting laws.

Risk of Paying Defense Attorney’s Fees & Costs

The Florida rule regarding an Offer of Judgment means that a plaintiff who files suit may potentially be made to pay the defendant’s attorney’s fees and cost if they lose at trial.  Let’s say defendant has offered plaintiff a $250.000 settlement.  Plaintiff refuses and goes to trial.  If judgment is for defendant, plaintiff can be penalized for refusing that offer by being ordered to pay the defendant’s attorney’s fees and costs.  In other words – you should have taken the settlement, and because you didn’t, the case moved for trial – you lose, you pay.  Even if you were the one injured!!  This also applies if the amount you are awarded is at least 25% less than the offer made.   If the judgment awarded is for $187,500 (25% less than the offer), then you might end up paying for both attorneys and all the costs.  Ready to sign that settlement agreement?

Threshold Injuries

Another interesting twist for Florida litigants is the concept of threshold injuries.  If you want to recover more than just your medical bills, you must meet a certain threshold of seriousness; “that  the injury or disease consists in whole or in part of: (a) Significant and permanent loss of an important bodily function. (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. (c) Significant and permanent scarring or disfigurement. (d) Death.”

You must have a doctor state within a reasonable degree of medical certainty that your injuries are permanent or have significantly diminished a bodily function.  Even with this expert medical testimony, a jury can find you do not meet the threshold.  This is why you need experienced counsel, dedicated to obtaining compensation for the injured.

What Next?

If you have accepted the settlement offer, the insurance company cuts the check, you pay the attorney’s fees and costs and everyone goes home.  If you do not accept the final settlement offer, a lawsuit is filed and we progress in that mode.

We will talk about the rest of the process in another post soon, as it is just too much information for one article.

If you or a loved one has been injured, and you think you are entitled to compensation, consult with an experienced, dedicated personal injury attorney to help determine your next steps.

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