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What Happens at Mediation in a Personal Injury Case?

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Archive: May 2021

What Happens at Mediation in a Personal Injury Case?

If you or somebody you care about sustains an injury caused by the actions of another individual or entity, you will likely be able to recover compensation for your losses. However, the process of recovering this compensation can be challenging. The vast majority of personal injury claims are resolved through settlements with insurance carriers, but that is not always the case. Sometimes, personal injury lawsuits are necessary, and this is where we may run into the mediation process. Here, we want to discuss what personal injury mediation is.

What is Mediation in a Personal Injury Case?

We mentioned above that the vast majority of personal injury cases are resolved through settlements before they go to trial. The reality is that most cases are uncomplicated enough that a settlement is a quicker and less expensive route to resolve the matter. However, there are times when lawsuits become necessary, particularly if the injury victim and the at-fault party or insurance carrier cannot reach an agreement.

In many situations, personal injury mediation may be ordered by a judge. When this occurs, the mediation will be conducted by a neutral third party of whom both sides agree to use. Usually, the mediator will be an experienced personal injury attorney in Orange County or even a former judge who has handled these situations on behalf of parties for years.

What You Can Expect During the Mediation

If you have to go through personal injury mediation, there are various steps that will be common to most mediations that you should be aware of beforehand:

  • Introductions. When the mediation begins, the mediator will introduce every person in the room. In general, this will include the injury victim (the plaintiff) as well as the alleged at-fault party (the defendant), representatives from insurance carriers, and the attorneys for every party. After the introductions, the mediator will usually give a brief overview of the case and possibly ask a few preliminary questions.
  • Both parties separated. After introductions, both parties will separate to different locations. Usually, the plaintiff and the defendant will not see each other again until after the mediation is over with.
  • The mediator goes back and forth. A mediator will proceed to go back and forth and talk to both parties about the claim. The mediator will have all of the information pertaining to the case, and they will be able to use their understanding of personal injury law to help craft an adequate solution for the entire situation. Mediators will pose questions to both sides, and they will relay pertinent information from one side to the other. We do want to point out that a mediator will be a confidant of both sides, and they will not relate confidential or sensitive information from one side to the other. However, because the mediator will have all this knowledge, they will be able to weigh the strengths and weaknesses of the case and make suggestions about what should happen.
  • Reaching a possible resolution. The entire goal of a personal injury mediation is to attempt to reach a settlement before a trial becomes necessary. If the mediator can get both sides to agree on an adequate compensation amount, then the case will essentially be over with.
  • Avoiding trial. In the event the mediation does not result in a successful resolution, it may become necessary to move forward with the personal injury trial. If a resolution cannot be reached during the mediation, then the mediation will end, and the case will be scheduled on the civil court docket.
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What Happens After a Deposition in a Personal Injury Case

If you or somebody you care about sustains an injury caused by the careless or negligent actions of another individual or entity, you will likely be able to recover compensation for your injuries and other losses. The personal injury lawsuit process can be challenging, particularly when it comes to your role in the case. In some situations, you may be asked to sit for a deposition. Here, we want to discuss what a deposition is, briefly tell you what will happen during the deposition, and cover what happens after a deposition has been given.

What is a Deposition in a California Personal Injury Case?

When you and your personal injury attorney file a lawsuit against the individual or entity responsible for causing your injury, you will go through something called the discovery phase of the lawsuit. The discovery phase will consist of both sides continuing to investigate the intent, gathering any possible evidence, and exchanging information with the other side. During this process, it may be necessary for any witnesses involved who have pertinent information to give a deposition.

If you are the injury victim, it is very likely that you will have to give a deposition as your case moves forward to a trial. Depositions are not formal court proceedings, and they typically take place outside of the courtroom. However, depositions are given under oath, and a court reporter will be present. The defendant will have a chance to ask you any questions related to the case, but your attorney will be there with you to help you through this process.

Often, depositions are used as a sort of “audition” for any potential trial. The attorneys involved will get to see how witnesses hold up under questioning, and they will be working to determine the believability and credibility of the witnesses.

What Will Happen After the Deposition?

After you give a deposition, it is not uncommon for the opposing side (the attorney for the defendant) to request that you undergo an independent medical examination. Because the case revolves around your injuries, the other side will do everything they can to verify that the injuries have actually occurred and that the injuries are as severe as you and your attorney claim. Even though this medical examination is supposed to be “independent,” this is just another step in the process of the defendant trying to disprove the injured party’s claims.

After the deposition has been completed and the other phases of the discovery process are over with, there is a high likelihood that both sides will continue negotiations. In some cases, a judge may order both parties to undergo mediation. The injury victim will work to obtain a settlement from the insurance carrier of the at-fault party. In the event negotiations or the mediation are not successful, the case will be scheduled for trial.

What You say in a Deposition Will Come Back

Remember when we said that depositions are given under oath and that a court reporter will be present during the process? This is important to keep in mind because anything a person says during the deposition can just later on in the court process.

For example, even if you gave a deposition, you will still likely be called to testify at trial. When you are giving your testimony through the personal injury jury, the information that you give needs to be the same that you gave during the deposition. If your story has deviated in any way, the attorney for the opposing side will most certainly use this against you. They will be able to provide the transcript of the deposition and show how your story has changed.

We do want to point out that giving inaccurate statements under oath is against the law. A person could face serious consequences for doing so. Your attorney will talk to you about how to approach the entire process and what happens if there are any conflicts between the statements you give. In some cases, new information may come to light about your injury or the incident that needs to be discussed. Your attorney can help explain to the court why earlier statements are different from the new information you tell the court.

What is at Stake

If you have to give a deposition for your personal injury case, then your attorney has likely already discussed what is at stake in these situations. You need to secure compensation for your losses. The deposition process is just another step towards securing the compensation you need to make yourself as “whole” as possible. The ultimate goal in these situations is to secure adequate compensation for your economic and non-economic losses. This can include, but is not limited to, the following:

  • Complete coverage of your medical bills
  • Coverage of physical therapy and rehabilitation expenses
  • The cost of prescription medications or medical devices
  • Lost income if you cannot work
  • General household out-of-pocket expenses
  • Property damage expenses
  • Pain and suffering losses
  • Loss of quality of life damages
  • Loss of consortium damages for a spouse

The total amount of compensation available in these situations will vary depending on the facts and circumstances surrounding each particular case.

Will an Attorney Help With Your Deposition?

Having an attorney by your side throughout this process is incredibly important. An attorney will be your guide and coach through the deposition process. In fact, it is not uncommon for attorneys to hold “mock” depositions in their office with you before you go to the actual deposition. An attorney will also make sure that you present yourself professionally at all times during the deposition process. This includes staying calm, even if the opposing attorney tries to get you riled up. This also means dressing as if you are going to an actual court appearance. You want to dress professionally and look the part. When you put your best face forward, the opposing counsel will take you seriously and think twice about denying your injury claim.

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The Most Common Types of Personal Injury Cases

When you go about your daily activities in California, we know the last thing you expect is that you will be injured due to the careless or negligent actions of someone else. Unfortunately, the reality is that there are countless ways that personal injuries occur.

However, when we step back and look at the most common ways in which personal injury cases arise, we can see some patterns. In general, we will find that most of the injuries involve the incidents that we list here.

Please keep in mind that it is always beneficial to speak to a personal injury lawyer when you are making a decision about whether or not to pursue a claim against another individual.

Vehicle accidents

When we look at data provided by the California Office of Traffic Safety, we can see that there were more than 268,000 total injuries caused by traffic collisions during the latest reporting year across the state. This is an astounding number, and we want to point out that vehicle accidents include more than car accidents. In this state, we know that motorcyclists, bicyclists, pedestrians, scooter riders, and others can be injured in vehicle accidents.

Additionally, accidents involving commercial vehicles often result in devastating injuries for victims. Fully loaded tractor-trailers can weigh as much as 80,000 pounds, according to the Federal Motor Carrier Safety Administration (FMCSA).

Boating accidents

Boating accidents are a common cause of injuries in the state of California. These incidents can occur on the ocean, and rivers, and on lakes. Unfortunately, we often find that boating accidents are caused by the careless or negligent actions of boat owners and operators.

Medical mistakes

Researchers from Johns Hopkins have said that medical errors are the third leading cause of death in the US. Medical errors can lead to significant injuries, and we often find that these incidents are caused by surgical mistakes, prescription medication errors, preventable infections, anesthesia errors, misdiagnosis, failure to treat a patient’s symptoms, and more.

Dog bites

Dogs have powerful jaws. Unfortunately, dog bite injuries are not uncommon throughout the state of California. Dogs regularly inflict significant injuries, including severed veins and arteries, severe lacerations or puncture wounds, amputated fingers, significant scarring and disfigurement, and more. California operates under a strict liability dog bite law.

This means that dog owners will be responsible for any injuries caused by their dog’s bite, regardless of whether or not the dog has ever bitten anybody before or shown a tendency to be aggressive.

Defective products

Products can become defective in a wide variety of ways in California and throughout the US. When we look at the recall website maintained by the government, we can see that just about any type of product we use or consume can become defective, including appliances, medications, foods, beverages, vehicles, boats, cosmetics, cleaners, and more.

These products can become defective due to faulty designs, manufacturing errors, or misleading product labels. Consumers can sustain significant injuries or illnesses if a defective product makes it into their homes.

Premises liability incidents

Under premises liability laws in California, property owners have a duty to ensure the safety of those who have a right to be on their premises. This duty extends to business owners, government property operators, and private residence owners. Slip and fall incidents are the leading cause of premises liability lawsuits in California.

However, these claims also arise in various other ways. Some of the most common causes of premises liability cases include inadequate security on the premises, inadequate lighting, faulty store displays or shelving, improper storage of chemicals or hazardous materials, and more.

Work injuries

Data available from the federal government shows that there were around 2.8 million non-fatal workplace injuries or illnesses during the latest reporting year across the country (BLS). Work injury victims in the state of California are usually entitled to benefits through the workers’ compensation system. These benefits should cover the medical bills and most of the lost wages the victim incurs.

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Personal Injury Lawsuit Process: What You Should Know About Your Lawsuit

Most people are not familiar with the personal injury lawsuit process. Why should they be? The last thing anyone expects that they will sustain an injury caused by the careless or negligent actions of another individual or entity.

However, when injury does occur, the prospect of pursuing a personal injury insurance settlement or lawsuit can be daunting. Here, we want to give you a brief overview of the personal injury lawsuit process, but please speak to a skilled personal injury attorney in Orange County, who can help you make the best decisions moving forward for your particular situation.

Step 1: Talk With Your Attorney

The first step a personal injury victim needs to take is contacting an attorney. An attorney will be able to help victims through this entire process regardless of whether or not the case will be settled with insurance carriers or through a personal injury lawsuit. Initial consultations with an attorney are usually free, and the attorney can help you determine the best steps moving forward for your case.

Step 2: The Investigation

Every personal injury case will be investigated by multiple parties. This includes insurance carriers, but it also includes your attorney. Various types of evidence will need to be gathered in order to prove liability. Though each case is different, some of the most common types of evidence an attorney will be working to obtain includes accident reports, photographs from the scene, possible video surveillance, statements from eyewitnesses, and more.

Step 3: The Demand Package

After an attorney gathers all the evidence needed to prove liability, they still need to make sure that they have a thorough understanding of the total losses the victim has sustained. This may take some time to realize because the injury victim needs to reach maximum medical improvement before an attorney can seek compensation on their behalf. An attorney will send a demand letter to the insurance carriers involved asking for payment for all of the client’s losses.

Step 4: The Personal Injury Lawsuit

If the insurance carrier involved refuses to offer a fair settlement or denies a claim altogether, it will be necessary for an attorney to file a personal injury lawsuit. An attorney will handle all the paperwork necessary to get the lawsuit started.

Step 5: Discovery Phase

The personal injury lawsuit will enter the discovery phase after it is filed. During the discovery phase, both parties will continue to investigate the incident and exchange evidence with one another as they evaluate every aspect of the case. It is not uncommon for one or both parties to realize that a settlement is inevitable or that there is no viable case at this point.

Step 6: Possible Mediation and Negotiation

If the two parties cannot reach an agreement in this process, a judge may order mediation. When this occurs, a neutral third party will act as a mediator and attempt to reach a resolution before a trial becomes necessary. If an agreement is reached, the case will be over with.

Step 7: The Trial

If negotiations and mediation are not successful, it may be necessary to move forward to a trial by jury. In these cases, the attorneys for the plaintiff and the defendant will present their case to the jury, and the jury will make a decision about whether or not the defendant caused the plaintiff’s injuries. The jury will also determine the compensation amount if they find that the defendant did cause the injuries.

Step 8: Working Through Appeals

After a jury returns the verdict, the losing party may choose to appeal the decision. The appellate process in these situations is different than the traditional trial process, and an injury victim will want to continue working with an attorney if appeals are inevitable.

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Is It Better To Settle Or Go To Court For A Personal Injury Case?

We know that the last thing you ever expected was that you would sustain an injury caused by the careless or negligent actions of another individual, business, or entity. However, if you do sustain an injury, it is important that you work with an attorney so you can obtain compensation for your losses.

Unfortunately, the personal injury claims process can be confusing. People often ask us whether or not they should settle their claim or pursue the wrongdoers all the way to court.

Here, we want to discuss the pros and cons of these decisions so that you are better informed about which process may be best for you. Please do not make these decisions on your own. A skilled personal injury attorney in Orange County can help you make these through this process.

The Pros and Cons of Settling Your California Personal Injury Claim

There are certainly various reasons why it would be beneficial to settle a claim before going to court. However, there are also many reasons why a settlement may not be in your best interest. As we go through these pros and cons, we do want to point out that the vast majority of personal injury cases are settled before they go to trial.

  • Pro 1. The reality is that a settlement is going to occur in a much shorter time frame than a personal injury trial. On average, a settlement will take three to six months to conclude (though this time frame can certainly be expanded for various reasons). However, if a person proceeds to a personal injury trial, this time frame could take twice as long. Additionally, settlements are usually less expensive and less stressful than a full injury trial.
  • Pro 2. When you are going through the settlement process, you and your attorney will generally steer the process through the negotiations. You and your attorney have the ability to accept or deny any settlement offer it comes through. You can negotiate to receive a better settlement. At a trial, you lose this power because the judge or the jury will be in charge.
  • Con 1. When you accept a personal injury settlement, there is a good chance that you will receive less money than you would have received if you took the case to court. Your attorney will help you decide whether or not going to trial is worth the additional time and expense.
  • Con 2. Personal injury settlements are permanent. After you accept a settlement, the case is completely over with. Even if injuries worsen over time or if new injuries are discovered, there will be no way to go back and renegotiate the deal.

The Pros and Cons of Going to Trial

There are various reasons ways in which a person could benefit by taking their personal injury case all the way to trial. However, please understand that the personal injury trial process is complicated, and we strongly encourage you to work with a skilled attorney when making these decisions.

  • Pro 1. Individuals who take their injury case to trial have the potential to receive much more compensation than they would otherwise receive if they accept a settlement.
  • Pro 2. Winning a trial does indeed give people a better sense of justice for the situation. In a trial, if the injury victim is successful, the defendant will be found guilty and ordered to pay money to the plaintiff. In a settlement, the defendant never has to admit any guilt.
  • Con 1. Trials can take a long time to conclude. These can be long, drawn-out, and expensive processes that bring incredible stress to those involved.
  • Con 2. You run the risk of not winning anything at trial. Just like you can receive much more compensation at a trial, there is a chance the defendant will be found not guilty for causing the injury, and no payment will have to be made. At this point, it will be too late to go back and try to reach a settlement.

Regardless of the route you choose to take for your personal injury claim, please work with a skilled attorney who can help you through this entire process. An attorney will have the resources and experience necessary to help you make the best decision moving forward.

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How To Determine What Your Personal Injury Case Is Worth: Step By Step

If you or somebody you care about has been injured due to the careless, negligent, or intentional actions of another individual or entity in California, you need to work with a skilled personal injury attorney who can help you make the best decision moving forward for your situation. Here, we want to specifically discuss how you and your Orange County personal injury attorney will determine what your case is worth.

1. Gathering the Proof for Economic Losses

The first step in determining how much a personal injury case is worth will be for you or your attorney to gather all of the evidence proving economic losses. When we say economic losses, we are referring to special damages.

In a personal injury case, special damages can include:

  • Medical bills
  • Physical therapy and rehabilitation costs
  • The cost of prescription medications or medical devices
  • Lost income
  • General household out-of-pocket expenses
  • Property damage expenses

In order to properly calculate these costs, you and your attorney will gather up all of the medical bills, any receipts, pay stubs, tax returns, and more.

2. Working to Calculate Non-Economic Losses

Non-economic damages in a personal injury case are incredibly important. These are also referred to as general damages, and they revolve around the more immeasurable aspects of the claim.

Some of the most common types of non-economic losses in a personal injury case include the following:

  • Emotional distress damages
  • Physical pain and suffering damages
  • Loss of quality of life damages
  • Scarring and disfigurement damages
  • Loss of consortium for a spouse

When working to calculate these losses, an attorney will often use a “multiplier method.” What this means is that the attorney will add up all of the economic costs that we mentioned above and then multiply that total by a set number (usually a number ranging from 1.5 to 5) to reach the non-economic total.

3. Determining Shared Fault

Another factor to consider in these situations is whether or not there was any shared fault for the incident. The good news is that injury victims in California can still recover compensation even if they are found to be partially at fault for the incident. California operates under a “pure comparative negligence” system. This means that a person can recover compensation even if they are found to be up to 99% responsible for the injury. However, the total amount of compensation a person receives will be reduced based on their percentage of fault. This has to be taken into consideration when determining how much a California personal injury claim is worth.

4. Sending a Demand Letter

After an attorney examines the facts of the case and adequately calculates how much compensation their client should be owed, they will send a demand letter to the insurance carriers asking for that amount and payment. There is a good chance that insurance carriers will send back a ridiculously low counter-offer or even deny the claim altogether.

5. The Lawsuit

If the attorney is unable to secure adequate compensation for their client after negotiating with the insurance carrier, they may need to file a personal injury lawsuit in order to move forward with the case. Even after a lawsuit is filed, it is unlikely that the case will go all the way to trial. The vast majority of personal injury lawsuits are resolved between negotiations with attorneys for both sides before a trial becomes necessary.

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