Personal Injury Claimant Guidebook

Download the PDF version: PI CLIENT GUIDEBOOK

Contents:

Forward – Introduction

Chapter One – What is a “Personal Injury Claim”

Chapter Two – Why do I need an attorney

Chapter Three – The Law of Negligence

Chapter Four – Types of First-Party Insurance Coverage

Chapter Five – Getting the Claim Opened

Chapter Six – Property Damage Issues

Chapter Seven – Wage-Loss and Loss-Of-Earning-Capacity Claims (TO BE SUPPLEMENTED)

Chapter Eight – Evidence of Physical and Emotional Injuries (TO BE SUPPLEMENTED)

Chapter Nine – General Damages (Pain and suffering) (TO BE SUPPLEMENTED)

Chapter Ten – Medical Reports and Experts (TO BE SUPPLEMENTED)

Chapter Eleven – Claim Valuation (TO BE SUPPLEMENTED)

Chapter Twelve – The negotiation Process

Chapter Thirteen – The Settlement Process

Chapter Fourteen – Special Consideration for Claims of Children and Spouses (TO BE SUPPLEMENTED)

Chapter Fifteen – The Litigation Process

Chapter Sixteen – Closing Remarks

FORWARD

The Law Offices of Steven D. Weier, PS, has put this short book together to assist and guide you in understanding the mechanics and processes involved in a pursuing a Personal Injury Claim.  This pamphlet is a simplified explanation  of several topics which you, the Claimant, should know.   It will also assist you in understanding what we – your attorneys – are doing for you, and what you can do to help your case move smoothly through the process.

Of course this short guide is not designed to answer all of your questions.  It is only a short overview of a few of the many aspects of your claim.  It is important for  you to know that if you have a question about your claim, its status, or the legal process, you should contact your attorney or representative directly or set an appointment for a Client Case-Status Conference.

The Law Offices of Steven D. Weier, PS will make a systematic effort to keep you apprised of the status of your claim on a regular basis.   It is not always logistically feasible for your attorney to contact you on  a daily, weekly or even monthly basis.   Therefore, you are encouraged to contact your representative if you have questions regarding your claim

We have a single Guiding Principle which directs our efforts.   It is simple:

Do the Right Thing,

Always.

While many companies have a mission statement, we choose to have a guiding principle which is easy to understand and easy to follow.  Our guiding principle is rooted in ethics – professional, personal, business and even spiritual.   To “Do the Right Thing, Always” is to stay focused on the high road.   We are a firm of highly competent professionals and support staff, and we strive to do the best jobs that we can – for our clients, and for ourselves.   And in those rare circumstances when an error is made by our office – we do whatever it takes to make it right.  Doing the Right Thing entails putting    our clients’ needs ahead of our own needs.  It entails taking and dealing with difficult cases because our client deserves to be represented.   It entails dealing with problematic issues head-on and not hiding facts.   Our Guiding Principle is what allows us to work hard, believe in what we do, and sleep with a clear conscious.   It is what our clients are looking for in an attorney.

 The Law Offices Of
STEVEN D. WEIER,  PS
331 Andover Park East
Tukwila, Washington  98188
(253) 931-0332 Fax (253) 735-2845

Chapter OneWHAT IS A PERSONAL INJURY CLAIM?

According to Black’s Law Dictionary, 5th Edition, “Personal Injury” is defined as follows:

“In a narrow sense, a hurt or damage done to a man’s person, such as a cut or bruise, a broken limb, or the like, as distinguished from an injury to his property or his reputation.  The phrase is chiefly used in this connection with actions of tort for negligence and under worker’s compensation statutes. . .”

You should note that a personal injury claim, by definition, does not include a claim for damage done to property, such as an automobile or its contents, but does include claims for the death of a family member by wrongful means (wrongful death claims).

Typically, personal injury claims are the result of the negligence of another.   Common sources of personal injury claims include, but are not limited to, the following:

Automobile accidents             Medical  malpractice               Defective product claims

Pedestrian accidents               Slip and fall claims                  On the job injuries

A “Claim” is a request for compensation – usually from an insurance company or other entity.   It is based on the precept that when one is injured due to the fault of another, the offending person (or entity) should make restitution – or compensation – to the injured person.

VOCABULARY:

Following are a list of the participants and vocabulary used in a personal injury claim.   It will be useful for you to understand the terminology and references when following the progress of your claim.

CLAIMANT:              The person making the claim under an insurance policy.   Usually the victim (you).

TORTFEASOR:  The person causing the injuries.  Also known as the “At-Fault Party” or the “Defendant.”

ATTORNEY:              Person licensed to practice law who represents a Claimant or a party to a lawsuit.

ADJUSTER: Person hired or employed by an insurance company to settle a claim.  The adjuster’s job is to avoid paying out money under the claim, or to pay the minimum possible.

PLAINTIFF:   The party to a lawsuit who files the suit (you) .

DEFENDANT:  The person being sued.

PARTY:  A plaintiff or a defendant.

1st PARTY INSURANCE: A client’s own insurance company.

3RD PARTY INSURANCE: The at-fault driver’s insurance company

PIP: (Personal Injury Protection) a provision in the client’s own insurance policy that pays medical bills and limited wage loss and necessary services.

UM/UIM: (Uninsured / Under Insured Motorist) a provision in the client’s own insurance policy that insures an uninsured at-fault driver, or extends coverage of an at-fault driver’s insurance to allow for a higher available policy.

POLICY LIMIT: The maximum amount a policy will pay out under certain circumstances

LIABILITY: The cause of the collision.  The at-fault driver is “liable” or accepts “liability” when he/she agrees he/she caused the accident

DAMAGES: the Effects of the collision upon a claimant; Special Damages designate those items that can be calculated – such as medical bills, wage loss, or damage to vehicles.  General Damages designate those items that are subjective and cannot be calculated – such as pain, suffering and loss of enjoyment of life.

SUBROGATION:  An insurance term meaning “reimbursement”

STATUTE OF LIMITATIONS (SOL):  The legal period of time after which a claimant’s right to sue for compensation disappears.  In Washington State the Statute of Limitations for an automobile accident is 3 years.  Other states have shorter limitations periods  (such as California or Oregon who have 2-year SOL).

IMPORTANT INFORMATION REGARDING SOCIAL NETWORKING SITES

If you belong to a public social networking account such as Facebook, Myspace, YouTube, Twitter, Google Buzz, etc., we STRONGLY recommend that you close it until your case is completely over.

If you choose not to close your accounts, we warn you to use great caution.  Whatever you write or post, or have written or posted, will probably fall into the hands of the defense attorney or insurance company. It is now standard practice for them to run computer searches and investigations to obtain information about your personal life.  They will try to obtain it without your knowledge or permission. Increasingly, they will demand that you provide them with your account passwords.  They will also ask the court to order release of your password information.

If you have such a site, you should immediately verify that all your settings are on PRIVATE (the highest setting possible) and nothing is public. Even with the highest privacy settings, you should only write or post items that cannot be used to hurt you.  These sites are open to the public.   The law is unclear if or to what extent privacy laws apply.

Our best advice is that you take down your sites until your case is over.  We understand you may decide to keep your site(s).  If so, we make the following specific recommendations:

Do Not…

  • Allow anyone to become a “friend” on a website like Facebook unless you are absolutely sure you know that person.
  • Post any photographs or video of yourself (or enable others to “tag” you)
  • Write or disclose anything about your personal life that you would be embarrassed to have a defense attorney use against you in front of a judge and jury
  • Send e-mails regarding your case to anyone except your attorneys.
  • Send texts regarding your case to anyone except your attorneys.
  • Enter insurance websites.
  • Participate in blogs, chat-rooms, or message boards.

We have seen an increase in electronic surveillance of these types of accounts and sites by insurance companies, investigators, and defense attorneys.  They hope to discover information to embarrass, humiliate or hurt you. They will look for pictures or comments by you or your friends that they can take out of context to prove that your injury is exaggerated or false. We have seen innocent, harmless joking between private “Friends,” used and distorted by insurance companies to try to convince a judge and jury that a plaintiff is dishonest.  We have seen insurance companies subpoena cell phone records and other social networking sites.

Asking you to limit your social networking is a great inconvenience.  But your case is very important.  We cannot protect you fully unless you follow our warnings and instructions.

Finally, our law firm and staff members do use social media. Our policy is not to “friend” our clients until the legal case has concluded. This is because we are in an Attorney-Client relationship with you and need to establish clear boundaries to protect this relationship for so long as your case is active.

If you have any questions or concerns about this, do not hesitate to contact our office.

Chapter Two WHY DO I NEED AN ATTORNEY?

First, a claimant needs an attorney for leverage.   If the adjuster knows the Claimant is without an attorney, he may make a small offer of settlement which is  inadequate.   What can the Claimant do?   The claimant says “Pay up $XXX, or I’ll sue.”   The insurance adjuster knows that it is an idle threat if there is no attorney to file suit.  The adjuster says “Take it or leave it.”  What will the claimant do?   He has three choices: (1) accept the low offer, (2) drop the claim, or (3) hire an attorney.

An experienced attorney knows how to deal with insurance companies and how to keep a claim moving and get it settled.   Without an attorney, a claimant will probably settle his claim for less than it is worth.  Worse, an insurance company may sit on a claim long enough that the Statute of Limitations runs out, leaving the Claimant without the ability to file suit.

Another important reason to retain an attorney to assist in the handling of your injury claim is for assistance with managing the bills.  Often there are various levels of insurance that may apply to any particular injury situation.  First Party Insurance (insurance that pays your bills as you go) may exist through your automobile insurance for medical bills only(Med-Pay coverage); it may exist for medical bills, interim wage loss, payment of necessary services (PIP coverage); it may be secondary coverage for medical bills (Health Insurance); it may exist through your employment (Workers’ Compensation).

These various levels of insurance may exist at different levels and at differing levels of priority.   Understanding which insurance coverage must pay your bills or at what point in your treatment they should pay can be confusing and complex.  It is your attorney’s job to understand the complexities of insurance coverages and applicable benefits.

Determining the proper value of your claim is also an important job of the attorney.  Nobody is better equipped to determine the value of your claim than a trial attorney who understands the nuances of personal injury litigation and has experience with similar cases.  The value of cases for individuals differs based on the nature and extent of the injuries, the duration of treatment, the cost of recovery, and the effects the injuries have had upon the claimant’s life.  Insurance companies will not disclose just how they value a claimant’s case, whereas a good attorney can mix the objective and subjective components of an injury case to bring about a valuation that is a more proper evaluation

ENGAGEMENT DOCUMENTS

Representation and Fee Agreement

THE FIRM

 You are hiring the firm of “The Law Offices of Steven D. Weier, PS”.   The firm consists of 5 attorneys and approximately 25 support staff (paralegals, case managers, etc.). This is not a 1 lawyer and 1 paralegal firm. It is important for the client to understand that the firm is very departmentalized. You will NOT be assigned 1 paralegal who is expected to do everything on your case.  Instead, your file will travel from department to department where staff members – who are specially trained – will work on your  file. For example, the file starts in the Open/Investigation Department, where the team will contact insurance companies, order police reports, contact witnesses and handle property damage issues. Then the file will be transferred to the Treating Department where the staff is specially trained to monitor your progress, work with your doctors and make sure auto insurance and health insurance are taking care of the bills. Then the file is transferred to the Records Acquisition Department where the staff is specially trained to order and procure your medical records and bills. The file is then reviewed by a Verifications Clerk to make sure all records and bills have been received. When the file ready, it is transferred to the Demand Writers who draft the Settlement Proposal which is then reviewed for grammar, content and valuation by at least 3 people, including an attorney.

The point of the foregoing explanation is simply to help you understand this: If it seems like you are always talking to someone different about your case, it is a GOOD thing because that means your file is moving through the process. If you are always talking to the same person, it means your file is stuck at a certain point in the process.

FEES AND COSTS

We charge 2 items to represent you: Fees PLUS Costs.  Fees are for our time; Costs are for what we spend on your case.

The FEE for our time is calculated as a percentage of the total recovery; it is 1/3 or 33-1/3% of the settlement value. The settlement value is calculated as the gross settlement amount – including any negotiated waivers of PIP or Health Insurance subrogation amounts.

MOST lawyers charge 1/3 to settle a case, but MOST lawyers also charge 40% for cases resolved in Arbitration or Mediation, and 50% for cases that go to trial, and MORE if there is an appeal.

The Law Offices Of Steven D. Weier, PS charges the same rate whether the case resolves in settlement, arbitration, mediation, trial, or appeal – it is always 1/3 of the recovery.  Because we do not have an increasing fee rate – we have a VERY COMPETITIVE RATE.

COSTS are for what we actually spend on a case: copies, faxes, postage, medical records, photos, police reports, etc. We ADVANCE all costs on a case up until litigation.  That is why we get reimbursed for costs at the time of settlement. That is why we charge FEES PLUS COSTS.   We USUALLY advance all costs for litigation as well.  However we reserve the right to request cost advances directly from the client if we anticipate the cost of litigation exceeding the expected trial outcome.

No deposit is required; that is because we advance the costs.

TERMINATION

The Termination clause essentially says that if we quit you owe us nothing for our time – you would still be required to reimburse for the costs. However, if you fire us we are entitled to bill you for the time we have spent on your case and the costs incurred. Our rates range from $150-$750 per hour for attorneys, and $25-$150 per hour for support staff and paralegals.

We rarely get fired, and your case is VERY important to us. The way we look at it is: If you fire us, we will never get another referral from you or your doctor – so getting fired is EXTREMELY expensive for us. So if you are ever dissatisfied with how your file is being handled, please take a moment to contact MR. WEIER directly to discuss the situation so that it can be remedied before it becomes problematic.

CONFIDENTIALITY

Communications between you and your attorney’s office is confidential.  However, you should know that if your friends or family contact us with questions about your case, we CANNOT discuss it with them. Confidentiality extends between you – the client – and the Firm (each and every member of the firm). If outside parties are present to a conversation between the client and the firm, it is NOT confidential and the client or other person can be forced to divulge the content and context of the conversation.

COMMUNICATION/CLIENT UPDATES

As your lawyers, we have an obligation to keep you informed as to the progress of your case.  To set communication expectations, you should know that at the beginning of the case there is a flurry of activity as we prepare your case for negotiation and attempt to negotiate a settlement. You will hear from the firm more frequently during that period of your case.

In the middle of the case – when you are treating with your physicians and trying to get better, there is less need for direct contact between the firm and the client – therefore you hear from us less frequently. We monitor your progress and your bills. During this middle phase, you should hear from us 1 time per month just to stay abreast of your progress.

When you call the firm, the receptionist will route your call to the staff member who is currently handling your file. That person is usually able to answer 90% of your questions and is the best person to talk to. HOWEVER; If you wish to talk to a lawyer, just ask to speak directly to that person. If  that person is available they will take the call then and there. HOWEVER; it is important to understand that the lawyers and the staff are frequently in meetings, depositions, trial, or out of the office. If that is the case and they are not immediately available, ASK FOR A TELE-CONFERENCE.

When you ask for a tele-conference, we will consult the individual’s calendar and identify times he/she is available to talk with you.  A conference with be set on the calendar so you both know exactly when you will be able to discuss your case.  This method also allows the firm to review the specifics of your case prior to the teleconference so that we are better able to address your concerns.  TELE-CONFERENCES are the BEST way to communicate with the office staff.   If you leave a message to “please call back” – you will get a call back, but it might not be as quickly as you would like. TELE-CONFERENCES are best.

POWER OF ATTORNEY

The Representation and Fee Agreement contains a Power of Attorney clause. The primary purpose of that clause is to allow the firm to sign documents on your behalf to keep the case moving during litigation. We rarely sign YOUR name – we sign “Steven Weier, attorney for CLIENT”. Without this clause in the Agreement, the client would have to come to the office to CO-SIGN every document. During litigation, the client would have to come in at least 2 times per week. Having this clause in the Agreement saves considerable time for the client – and IT IS PRIMARILY USED WHEN THE CASE IS IN LITIGATION.

REVIEW OF FEES

In the State of Washington, every consumer of legal services has the right to have his/her file reviewed by the Washington State Bar Association – or a Judge in the Court system – if he/she believes they have been improperly billed or otherwise not properly represented. This is the right of any consumer of legal services in the State of Washington. Our billing and treatment of clients is proper and well documented, so we have no fear in relaying this information to our clients. We want our clients to understand their rights so that they are able to exercise them as necessary.

CLIENT CERTIFICATIONS

Under the new HIPAA laws, certain disclosures must be made. If you – the client – are eligible for Medicare benefits and Medicare has made payments on your behalf, we are FEDERALLY OBLIGATED to make sure we contact Medicare at the time of settlement in order to arrange repayment of any monies paid by Medicare on your behalf.

If you – the client – have declared bankruptcy in the past 10 years, we are FEDERALLY OBLIGATED to contact the bankruptcy court to disclose the receipt by you of any settlement funds. Depending on the bankruptcy type and terms, you may be obligated to pay all or a portion of your settlement proceeds into the bankruptcy court for distribution to creditors.

If you – the client – have an outstanding child support lien with the Department of Social and Health Services (DSHS Division of Child Support (DCS) we are LEGALLY OBLIGATED to contact the Department and advise them of the potential recovery of funds.  DCS typically is legally entitled to garnish that portion of your settlement proceeds necessary to cover your outstanding child support lien

Information Releases

In order to process your claim, we need to acquire certain relevant information. Some of the information we can get merely by the fact that we are attorneys (such as police reports, 911 tapes, etc.) However, much of the information we need is protected by constitutional rights of privacy.

When a client submits a claim for bodily injury, proof of the injury must be presented in order to evaluate and settle the claim. Proof of injury comes primarily from MEDICAL RECORDS and bills.

RELEASE FOR HEALTHCARE INFORMATION (HIPAA)

Under HIPAA laws, health care information cannot be provided to anyone other than the patient UNLESS the patient releases the information by signing a RELEASE. We utilize a HIPAA release to gain access to your medical records and bills. Usually, only the records related to your accident or claim are requested; HOWEVER, insurance companies are more frequently requesting to access your medical history for the 5 years pre-dating your accident. While this information may not seem relevant to your claim, an insurance company frequently will refuse to negotiate the settlement of a claim without this information. Therefore it is our practice to request information regarding your health care for the 5 years preceding the accident.

While the Release may indicate it is valid for up to 365 days – many medical providers will not accept a signed Release unless it is dated within 30 days of the request for information.

RELEASE FOR EMPLOYMENT RECORDS

If a client is claiming a loss of wages, profits or earnings as a result of the accident and bodily injury, proof of the lost income must be presented. Usually, employment records pertaining to the claimant’s most recent earnings, wage rates and benefits is acquired by using a Release for Employment records.   This Release is sent to your employer or HR department to verify the dates of absences related to your injury, and to verify your wage rate.

GENERAL RELEASE OF INFORMATION

Sometimes additional information important to the claim is needed from other parties or entities. Photos of property damaged taken by an auto-body repair shop, or records of attendance from an educational facility may be needed to establish the effects and injury had on the claimant’s life. A General Release of Information is used for obtaining information from other persons or entities that would not be covered by a HIPAA Release or Employment Records Release.

SIGNING AND DATING OF RELEASES

Releases of information are valid for 365 days from the date it is signed. Because information is usually acquired OVER 90 days after the release is signed, we have the client SIGN the release and NOT DATE IT.

When information is needed, we photocopy the original Release, and fill in the date we are requesting the information. This allows us to expeditiously retrieve information necessary to the claim without having to have the client return to the office to sign new releases every 90 days.

Chapter Three – THE LAW OF NEGLIGENCE:

Many automobile accident Personal Injury cases are brought on the grounds of “negligence.”   That is, (1) the Tortfeasor was negligent (had a duty but failed to exercise that degree of care which a reasonable person would exercise under the same circumstances), (2) the Tortfeasor’s negligence was the proximate cause of  (3)  the claimant’s injuries.

An attorney must prove the elements of the case to prevail in Court.  Likewise, the attorney must convince an adjuster that he can prevail in Court in order to reach a satisfactory settlement. It is helpful for the client to understand what his/her attorney is trying to prove to better understand what the client can do to assist his/her own case.

The attorney must prove that the Tortfeasor was negligent.   This is frequently done by showing that the Tortfeasor violated some statutes of law, such as laws regarding stopping for stop signs, proper following distances, or improper lane travel.

The attorney must also prove that the Claimant was in fact injured.  This is usually done through the introduction of medical records and testimony of treating physicians.

The attorney must prove that the injuries were caused by the Tortfeasor’s negligence.   This is often the most difficult element to prove in a personal injury suit,  particularly if the Claimant had pre-existing medical conditions or prior accidents.   An attorney must often enlist the help of expensive medical experts to testify to the causal relationship between the accident and injuries.

To win the case for the client, the attorney must prove two major components of the case: (1) Liability (whose fault was the accident), and (2) Damages (what injuries did the Claimant suffer, and how did the injuries effect his/her life).    Liability is established through evidence of the dynamics of the accident.  Witnesses and accident reconstructionists are useful to establish how the accident happened in difficult or complicated cases.

Once liability has been determined, the attorney for the claimant must show the nature, effect and extent of the injuries suffered by the claimant.   Medical testimony is often necessary to establish the nature and extent of the injuries.  Testimony of the Claimant’s family, employer and friends is very useful in establishing how the injuries affected the Claimant’s life.

The client should keep in mind the elements that the attorney has to prove to reach a good settlement: the breach of the tortfeasor’s duty; the degree of care that the tortfeasor exercised; the causal relationship between the accident and the injuries; and the damages to the client.

Chapter Four – TYPES OF FIRST PARTY INSURANCE

PIP (Personal Injury Protection)

PIP stands for personal injury protection, and it is an extension of car insurance that covers medical expenses and, in many cases, lost wages. It is often called “no-fault” coverage because its inherent comprehensiveness pays out claims regardless of who is at fault in the accident.

If you have PIP insurance and are hurt in an  accident, you can receive benefits whether or not the accident was your fault. On top of medical bills and lost wages, PIP insurance can also cover expenses like transportation to medical appointments and lawn maintenance.  In addition, unlike health care insurance, you do not need a referral from your PCP to go to a Chiropractor or Massage Therapist or Acupuncturist.  For the most part, PIP coverage allows you to pick your provider without prior authorization.

PIP is similar to Med Pay insurance in that it will cover injury costs stemming directly from the accident. The main difference is that PIP is actually more comprehensive and will even compensate you for lost wages or assistance around the house – called a “necessary services” benefit. PIP insurance is therefore more expensive than Med Pay is.

In a nutshell, PIP insurance removes the question of blame from the car insurance equation. Each driver’s policy pays for damages to that driver based solely on his or her needs. Rate fluctuations are therefore based on the frequency and severity of your car damages, not whether you are — or are not — frequently at fault.

It should come as no surprise that, dollar for dollar,  PIP insurance is more expensive than traditional health insurance.  However, considering  PIP coverage only applies to accident related injuries and not common illnesses or preventative care, it is actually remarkably inexpensive.  The main reason for the minimal premiums for PIP is the insurer’s right of subrogation (reimbursement).  If your injuries are caused by the actions of another person (at-fault party) and you receive a settlement, then your PIP carrier gets reimbursed out of the settlement.  Hence the cost of insurance reflects the likelihood of reimbursement or subrogation.

When using your PIP benefits, it is best to think of them as a “loan” against your settlement to pay for your medical bills as you go.  The opposing party’s insurance does not pay “as you go.”  Therefore you may be  subject to the collection efforts of the medical providers if you don’t have PIP coverage.  PIP is designed to protect you and your credit in the event you are injured in an accident – hence the name “Personal Injury Protection” benefits

Health Insurance

You may be familiar with health insurance, but you need to know that health insurance is not the primary (first tier) source for paying medical bills after an automobile accident.  The hierarchy of payment goes as follows:

  1. Workers Compensation Benefits (only if you were working at the moment of the accident);
  2. PIP/Med-Pay coverage on the vehicle you are driving or riding in;
  3. PIP/Med-Pay  coverage on your personal policy
  4. Health Insurance.

Note that neither your PIP or Med-Pay nor your Health insurance will pay for your treatment if you were working at the moment of the injury.  You must exhaust (use up all medical benefits) all the PIP/Med-Pay benefits  on the coverage of the vehicle before your personal PIP/Med-Pay will start paying your bills.  You must also exhaust all PIP/Med-Pay benefits before Health Insurance will start paying your bills.

Like other forms of insurance, in the event of a settlement, your Health Insurance company will be entitled to be reimbursed for the amount they pay on your behalf.

As with typical use of Health Insurance, you may have a deductible or co-pays that must be paid.  These are YOUR responsibility at the time of treatment.  Your lawyers will seek to get you reimbursed for these out of pocket expenses at the time of settling your case.

Med-Pay:

Car insurance protects your car, not the people inside of it. “Medical Payments to Others” (often called Med Pay) covers the medical payments of all passengers in your vehicle if they are injured in an accident.

Med Pay will cover the medical costs resulting from an auto accident, regardless of who was at fault. Only injuries caused directly by the accident will be covered by Med Pay, and limits are most typically $5,000 limits.

Med Pay is very similar to Personal Injury Protection (PIP) in that both coverages will pay for physical injuries caused by an accident and because neither is concerned with who was at fault. The difference is that PIP insurance is more comprehensive; the coverage can also extend to cover other items such as your lost wages. Pip is therefore slightly more expensive than Med Pay. There is no need to have both.

Remember that Med Pay is purchased on a “by vehicle” basis. This means if you have two cars you must purchase Med Pay for both if you wish to be covered while in either car.

It’s also very important to point out that Med Pay is not a replacement for health insurance. Med Pay coverage is strictly limited to injuries that occur during auto accidents and almost always has a low limit.  Yes, your health insurance can also cover your injuries if you’re in a car accident; the difference is that Med Pay will cover the other people in the car. For example, Med Pay might be a good idea if you drive a carpool regularly or if you are not concerned about assistance with household duties such as laundry or landscape maintenance.  If you live with your family and have other people in the house that will be available to assist you, PIP coverage might be unnecessary and Med-Pay may suffice.

Like PIP an advantage of Med-Pay coverage is that you can liberally choose your providers.  You do not need a referral from your PCP to go to a Chiropractor or Massage Therapist or Acupuncturist.

Like the other forms of medical insurance payments, Med-Pay is usually entitled to be reimbursed out of the proceeds of a settlement.

Worker’s Compensation

Workers’ Compensation benefits are typically administrated through the Washington State Department of Labor & Industries (L&I).  However, some larger companies “opt-out” of the State system and are self-funded (like  Boeing, Alaska Airlines, etc.).

L&I has stringent rules and regulations regarding who you see for treatment, how often you may go, and what injuries L&I will accept as accident related.  It is a very technical and complicated system that mandates a high level of cooperation in order for L&I to pay for the bills.

Like other forms of medical payments, L&I I also entitled to reimbursement at the time of settlement.

IMPORTANT INFORMATION FOR CLIENTS WHO DO NOT HAVE PIP OR HEALTH INSURANCE

The purpose of this section is to address issues regarding the payment of your medical bills related to your accident claim when you do not have any medical coverage under your auto insurance (PIP coverage) or health insurance coverage.  You need to be advised of important information regarding payment of your bills:

  1. Be advised that the bills you receive regarding medical treatment are your responsibility.  Under Washington law, the health care practitioner is providing services to you – not to the insurance company of the at-fault person.  That means the contract for health care services is between you and your health care provider.   We highly recommend that you arrange pay your bills now, if you can.  If you are unable to pay your medical bills in full, we recommend that you work out a payment plan with your health care providers.
  2. Be advised that medical providers have the right to send any unpaid balance to a collection agency.  Once a bill has been sent to collections, it will negatively affect your credit score.  You will find that some providers are willing to set up payment arrangements.  Some providers will wait for payment until the case settles.  In either case, expect to pay interest on the balance being financed or held.  Unfortunately, some providers will refuse to enter into payment plans or wait for the settlement.  You may wish to look for some form of independent financing for these bills in order to protect your credit.
  3. Although we can assist you with many issues regarding your case, we are usually unable to work out payment plans with providers on behalf of our clients.   That usually must be arranged directly between you and your providers.

A common misconception with motor vehicle collision claims is that the other party’s insurance company, or “at-fault insurance” will pay for all related medical treatment as you receive treatmentUnfortunately, that is incorrect.  At-fault insurance carriers do not pay as you go.  It is in their best interest not to pay your bills until the end of the case as it puts you in a position that you may be willing to settle sooner and for less – just to save your credit rating.  That means the insurance company uses your credit rating as leverage against you.  Arranging payment of your bills eliminates that leverage and the stress caused by the associated debt.

Frequently, outstanding or unpaid medical bills related to the accident are paid out of the bodily injury settlement at the end of the claim at the time of final settlement disbursement (assuming the settlement is sufficient to cover all medical expenses).  This is done by arranging to defer payment of the bills through a personal guaranty of payment such as a Lien or Letter Of Protection.  Some medical providers will agree to wait for payment until the settlement at the end of the case.  They usually require a Lien which is filed against the settlement, or a Letter Of Protection signed by the client – to guaranty their payment.  You can inquire with your providers if they accept these types of assurances to defer payment of their bills.  We work with your providers to arrange these options when they are available.

If you have paid for any medical bills out of pocket, a portion of your proceeds (the funds you receive) would be to reimburse you for those expenses.   It is not reimbursed separately from the other settlement funds.

IMPORTANT INFORMATION FOR CLIENTS WHO DO HAVE HEALTH INSURANCE

The purpose of this section is to address issues regarding the payment of your medical bills related to your accident claim when you have health insurance coverage. You need to be advised of the important information regarding payment of your bills:

Most health insurance companies do not pay 100% of the medical bills. They have a contract with medical providers that allow them to only pay a contractual-portion of the total bill. The provider is then required to write-off another portion of the bill. What is left is called “Patient Responsibility”. The amount that health insurance covers for specific procedures varies from company to company and should be listed within the policy language. The “Patient Responsibility” is the amount that the patient is responsible for paying, after health insurance payments and contractual write offs.

  1. Not all treatment is covered by health insurance.  Most health insurance plans only cover a finite number of chiropractic visits – frequently 10-12 visits.  Similarly, massage therapy and acupuncture treatment usually have very limited allowable benefits.  You should inquire with your health insurance carrier as to the exact number and amount of benefits available under the circumstances.  Treatment beyond the allowable number of visits is considered “Patient Responsibility.”
  2. Most health insurance companies also require you to pay a deductible each year. Again, this varies from company to company and is listed within the policy language. The medical providers are still required to apply the contractual write offs, however, health insurance will not make any payments until the deductible has been met. This deductible will again be “Patient Responsibility.”
  3. Be advised that medical providers have the right to send any unpaid balance to a collection agency.  Once a bill has been sent to collections, it will negatively affect your credit score.  You will find that some providers are willing to set up payment arrangements.  Some providers will wait for payment until the case settles.  In either case, expect to pay interest on the balance being financed or held.  Unfortunately, some providers will refuse to enter into payment plans or wait for the settlement.  You may wish to look for some form of independent financing for these bills in order to protect your credit.

A common misconception with motor vehicle collision claims is that the other party’s insurance company, or “at-fault insurance” will pay for all related medical treatment as you receive treatmentUnfortunately, that is incorrect.  At-fault insurance carriers do not pay as you go.  It is in their best interest not to pay your bills until the end of the case as it puts you in a position that you may be willing to settle sooner and for less – just to save your credit rating.  That means the insurance company uses your credit rating as leverage against you.  Arranging payment of your bills eliminates that leverage and the stress caused by the associated debt.

If you have paid for any medical bills out of pocket, a portion of your proceeds (the funds you receive) would be to reimburse you for those expenses.   It is not reimbursed separately from the other settlement funds.

Chapter Five – GETTING THE CLAIM OPENED

Your file will progress through several departments as your case is processed:

OPENING DEPARTMENT

Your case is entered into our database system and letters are sent to the pertinent insurance companies and health care providers.  The physical file is organized and assigned to a specific Case Manager for initial handling of your claim.

INVESTIGATION DEPARTMENT

The Police Report or other investigation reports are obtained, satellite photos of the scene of the accident are retrieved, witnesses are contacted and insurance coverage is investigated.  This department also arranges to obtain the initial emergency treatment records, such as ambulance, hospital or ER records.  Obtaining these initial records saves time for the Records Department at a later date.  The attorney’s office usually conducts the initial investigation.   This consists of reviewing the physical evidence including the accident scene, the vehicles, the injuries (if visible), and talking with eyewitnesses.   If the accident was substantial or the facts of the accident are questionable, an accident reconstructionist may be employed to analyze the accident.   Accident reconstructionists are expensive experts which are usually only retained for larger cases which warrant higher costs.         Occasionally a private investigator is retained to track down an elusive Tortfeasor, or to track down the whereabouts of a particular vehicle or witness.   Again, private investigators are expensive and not routinely retained.

PROPERTY DAMAGE DEPARTMENT (PD)

If your car is damaged and repairs are necessary, the PD Department assists you with reimbursements, Loss of Use, rental cars, etc.  If your car is a total loss, this department assists you by generating a valuation report of your car and can assist you in negotiating a proper settlement for your property damage.  If your car is repaired and suffers a Diminution in Value (DV) this department can assist you by obtaining a DV valuation report and negotiating a DV settlement on your behalf.

CURRENTLY TREATING DEPARTMENT

Once all the initial investigation is completed and immediate concerns are met, your file is monitored and maintained as you concentrate on physical healing and treatment with your health care providers.  This stage typically is the longest stage and requires the least input from our clients.  During this stage we monitor your progress with monthly phone calls and assist your medical providers with obtaining payment from insurance carriers where necessary.

DONE TREATING

Once you have notified the firm that you have completed your accident-related treatment, your file is reviewed for missing documentation and your medical records and billing statements are requested from the various health care organizations where you sought treatment.  Some organizations will provide copies of the records and bills quickly.  Other organizations and large HMOs take much longer to provide  records.  The average wait time for records is about 60-90 days.  However some providers do take longer.

RECORDS DEPARTMENT

Due to changes in health care laws over the past several years, getting your medical records has become a longer, much more difficult process.  Newer HIPPA laws extend protections for your privacy by requiring organizations to carefully scrutinize the information they send out.  That means they have to review the records before they send them – and that adds time to the process.  In addition, more health providers and organizations are merging and being acquired.  Health care records management for some providers has become centralized, whereas other providers are outsourcing the management of the records to confidential document management companies.  Some organizations perform the billing functions in-house, while others are outsourcing their billing systems.  The result is –IT TAKES MUCH LONGER TO GET YOUR RECORDS AND BILLS.

VERIFICATIONS DEPARTMENT

We are one of the very few firms that incorporate a Verifications Department.  This department matches up all your records and bills to make sure we have a complete set.  Frequently we find additional health care providers listed in the medical records that we were not previously known to us.  We then order those additional records.  In addition, a  reconciliation is completed to assure that we know which bills were paid by which insurance carriers and what bills remain outstanding.  We often find that the insurance company will advise us that they paid a particular health care provider, but the health care provider will report that they never received payment.  We take it upon ourselves to make sure that all the numbers match and all the payments and receipts are accounted for. By performing this verification function, you are assured that when your case is settled you will not be “surprised”  by  additional bills that were not accounted for in the settlement.

DEMAND DEPARTMENT

This department drafts the settlement proposal (often called a Demand Package)  which is sent to the insurance company to open the dialogue to negotiations.  The Demand Writers will contact you to discuss the effects the injuries have had on your life.  The Demand will be reviewed by 2 paralegals and at least 1 attorney before being submitted to the insurance company along with pertinent medical records and investigative documents to support the claim for damages.

NEGOTIATIONS

Only attorneys negotiate claims at The Law Offices Of Steven D. Weier, PS.   You can rest assured that we utilize every resource as our disposal to negotiate the best possible settlement for you.  And because we are experienced trial lawyers, the insurance companies take us seriously when we threaten to file a lawsuit.  We have settled thousands of cases; arbitrated hundreds of claims; and taken hundreds of cases to trial.

Chapter Six – PROPERTY DAMAGE  ISSUES

VEHICLE DAMAGE

You have been in a car accident, your vehicle is damaged.  What is next? This process is very simple:

  1. Take photographs of the damage;
  2. Obtain at least two estimates of the damage from two different  shops where you  may want to repair the vehicle;
  3. Decide if you would like to go through your insurance, or the insurance of the at-fault party:
    1. If go through your insurance company – you will need to have your own “collision” and “rental” coverage:
  • it will be faster than going through the at-fault insurance company
  • you will need to pay a deductible, which you may get back once your insurance company gets reimbursement from the at-fault insurance carrier
  • If the other party did not have insurance/enough insurance – you may be able to use your UIM/UM-PD coverage if you have it. You will also have a deductible.
    1. If you go through insurance company of the at-fault party
  • It may take longer while the insurance company investigates the facts of the accident and available coverages
  • You will not need to pay a deductible (unless you are partially at fault).
  1. Forward estimates and photographs to the insurance adjuster;
  2. Let them know where you would like to repair the vehicle and ask to set up a rental vehicle;
  3. Take your car in for repairs.

Adjusters will sometimes issue a check for repairs directly to you.  Take your car and check to the facility where you would like for your vehicle to be repaired, give them the check and ask them to contact insurance company to obtain additional funds for repairs. If you decide to cash the check and NOT get your car repaired, NOTIFY YOUR LAWYER right away to discuss the implications and effect on the outcome of your case.

Initial Insurance estimates are always lower than the actual cost to repair the vehicle.  That is because the insurance estimator does not look under the car for hidden damage.  Also, the insurance company hopes that you will take a repair check and cash it and never fix the car.  It always costs the insurance company less if you cash the initial check.

Also – it is important for you to understand that insurance companies frequently take the position that small damage to a vehicle indicates the occupant (you) could not be injured.  Some insurance companies have internal policies that prevent them considered an occupant injured unless the damage to the vehicle exceeds a certain amount – like $500 or $1,000.  Because of these internal policies, IT IS ALWAYS BETTER TO GET YOUR CAR REPAIRED THAN TO KEEP THE MONEY.

Preferred“ Repair Shops v. “Independent” Repair Shops

Some facilities are considered “Preferred” shops with insurance companies.  Most of the time that means that the insurance adjuster would not need to come out independently of the shop to take a look at your vehicle.  The repairs are usually performed quicker.

However, being a “Preferred” shop means that the body shop has an agreement with the insurance company to accept lower labor prices and must use  parts identified by the insurance company.  Insurance companies almost always require the shop to use junkyard parts or aftermarket parts (parts not made in the USA, or by a company other than the company that actually made your car) on your vehicle – instead of Original Equipment Manufacturer (OEM) parts.  “Preferred” shops must follow the insurance company’s guidelines to maintain their “preferred” shop status.

An “Independent” shop, on the other hand, is a shop that places the quality of the repairs above the cost of repairs.  An “Independent” shop will fight for you to utilize OEM parts and provide the highest quality of repairs to your vehicle.  Utilizing an “Independent” shop occasionally results in slightly longer repair times and more fighting with the insurance company – but the quality of the repairs are usually better and safer.

Other notes:

  • When you are renting a vehicle, if you have insurance, then you might not need to purchase additional coverage through the rental agency. If you purchase extra coverage from the rental car company the insurance company WILL NOT COVER THE COST OF INSURANCE.
  • If you do not need a rental vehicle, you might be able to receive compensation for “Loss Of Use” for your vehicle.  Typically, “Loss Of Use” is allowed at a rate of approximately $20 per day from the day of the collision until the day the car is repaired or determined to be a total loss.
  • Please read any and all paperwork from the insurance company and contact your attorney if you have question or asked to sign anything
  • Do not discuss your injuries with any insurance adjusters and do not agree to be recorded when talking to insurance adjusters.

CLOTHING AND PERSONAL EFFECTS

Sometimes the property you have in your car is damaged in the course of a collision; merchandise in your trunk for example.  If you have a CHILD RESTRAINT SEAT           and it is occupied at the time of the accident you MUST replace the car seat!  The insurance companies cannot suggest that you put your child in a USED car seat after an accident – that is inherently unsafe!  If your clothes are damaged (such as in a motorcycle accident) then you are entitled to have those items replaced.

DIMINUTION IN VALUE

If your car is a late model vehicle (usually 5 years old or less) and it has been damaged and repaired, it becomes less valuable to a subsequent buyer because it has been in a collision.  This perceived loss of value is called “Diminution in value” – or DV.

If you try to trade your car in after it has been repaired, you may find that the dealership will give you less money for it than if it had never been wrecked.  The accident may show up on a CarFax document, or you may be asked if it has been in a collision and repaired.  You never want to lie!

Most insurance companies recognize DV claims.  However, many UIM/UM policy provisions only allow for recovering the cost of repairing or replacing the vehicle – but NOT the loss in value of the vehicle.

In order to recover DV damages, we must show that the vehicle has suffered more than cosmetic damages; frame damage, repainting and structural repairs are examples of significant repairs that affect the value of a vehicle.  We retain a special DV appraiser (usually $250 – $500) to assess the vehicle and determine how much (if any) loss of value there has been.  These types of claims are difficult and require more strategy than simply getting a vehicle repaired, or determining the total-loss value of a car.

Not all cars that are damaged have a DV claim.  And any loss in value gets smaller as a car gets older.  For example the DV on a 1 year old car will be greater than the DV on the same 5 year old car. You will want to pursue a DV claim IMMEDIATELY after the car is repaired because the longer you wait, the lower the DV.  The loss in car value diminishes to $0 within about 5 hears after an accident.

Chapter Seven – WAGE-LOSS AND LOSS-OF-EARNING-CAPACITY CLAIMS

[this section to be supplemented]

Loss of “Wages”

Loss of “Profits”

Loss of “Income”

Self-Employment Income

Loss of Earning Capacity

Chapter Eight – EVIDENCE OF PHYSCIAL AND EMOTIONAL INJURIES

[this section to be supplemented]

Physical Injuries

Emotional Injuries

Chapter Nine – GENERAL DAMAGES (Pain and suffering)

[this section to be supplemented]

Chapter Ten – MEDICAL REPORTS AND EXPERTS

[this section to be supplemented]

Chapter Eleven – CLAIM VALUATION

[this section to be supplemented]

Valuation Basis

Case Comparisons

Awards, Verdicts and Settlements

Chapter Twelve – NEGOTIATIONS:

When your claim goes into negotiations, you need to trust your attorney to do the best possible job for you.   It is common for an insurance company to make ridiculously low offers initially.    Low offers just tend to enrage or offend clients.    Making low offers  is a tactic of insurance adjusters to damage the attorney/client relationship.  Don’t fall into the trap of becoming angry at your attorney for the insurance company’s low offers.     The attorney will advise you if it’s a good offer or not.   It is ALWAYS up to the client whether an offer is acceptable.    While the attorney cannot make the decision for the client, the attorney may give a RECOMMENDATION.

The insurance company’ first offer is typically very low and offensive. It is designed to make the claimant angry, frustrated and consider dropping their case.  Because this insurance tactic tends to aggravate our clients it is our policy to relay only the final offer – the offer wherein the adjuster says “take it or file lawsuit.”  Any offers prior to the “final offer” are meaningless because we know there are more offers to consider.

Chapter Thirteen – THE SETTLEMENT PROCESS:

You should know that settlements are final.  Whether it is by negotiations or by a jury verdict, once it is accepted, it is final.    That means if you still have  pain or require future medical treatment for your accident related injuries, the insurance company  is not obligated to make any further payments.   It is up to YOU to set aside a portion of your settlement proceeds for future medical bills, if you so desire.

After a case settles, it typically takes insurance companies about a week to send the release and the settlement check to your attorney.   The settlement check will be made payable to both you and your attorney.   Your attorney will have you endorse the check, then it will be placed into a Trust Account which is regulated by the Washington Bar Association.   You will received your portion of the settlement check five (5) business days after it has been deposited.  Along with your check you will get a receipts and disbursements form that gives a full accounting of where all the settlement money has been distributed.

Chapter Fourteen SPECIAL CONSIDERATION FOR CLAIMS OF

CHILDREN AND  SPOUSES:

Injury claims can effect the whole family – directly and indirectly.  There are special circumstances when members of the family may have their own independent or derivative claim against the at fault party for injuries.  For example, a spouse who is not involved in the injury-causing accident may have a claim for “loss of consortium” due to their partner’s inability to perform the functions of a spouse.  Children may have a claim for loss of financial support for a parent who has suffered an untimely death due to an accident.  These are complicated issues and the material below are designed to touch on some of those issues – but not to provide a comprehensive discussion.

CHILDREN:

SETTLEMENT OF CLAIMS OF MINORS

Special Court rules apply to the settlement of claims involving minors (persons under the age of 18 years).  These rules are set forth in Washington State Court Superior Court Special Proceedings Rule (SPR) 98.16W and are designed to protect minors, who lack legal capacity to settle their own claims due to their age.  The process applies to all claims they may have, including personal injury claims, inheritances, and claims made under insurance policies or other contracts.

The three main goals of the process are to ensure that:

  1. the minor’s claim is settled for fair value;
  2. the child receives a fair share of the settlement proceeds (after medical bills, legal fees, and other necessary expenses are paid); and
  3. the settlement funds are invested for the benefit of the minor.

The following information is designed to answer questions you may have about the process of settling the claim of a minor.

WHAT IS A SETTLEMENT GUARDIAN AD LITEM (SGAL)?

Once a proposed settlement is reached, (whether or not a lawsuit has been filed and/or victorious), SPR 98.16W  requires the appointment of a Settlement Guardian ad Litem (SGAL).  The SGAL must be an attorney with experience handling the claims of minors.  Their duty is to advise the Court concerning the best interests of the minor; therefore, the SGAL cannot represent the interests of other family members, or other parties to the claim. In order to ensure the SGAL is independent and unbiased, the Court has developed a registry of qualified attorneys, from which appointments are usually made on a rotating basis.  The SGAL assigned to your child’s case will be contacting you by phone or mail soon, it is very important that you cooperate with them.

WHY IS A SGAL INVOVLED?

SPR 98.16W REQUIRES the appointment of a Settlement Guardian ad Litem (SGAL). The settlement Guardian ad Litem’s role is to investigate the adequacy of the settlement offered, taking into account all relevant factors, including the nature and extent of any injuries; the settling party’s proportionate fault (i.e., whether others, including the minor, were partially at fault); the risks and benefits of further litigation; and insurance or other assets available to satisfy the claim. The SGAL must also analyze whether the minor will receive an appropriate share of the settlement proceeds (after payment of medical bills, legal fees and other expenses) and make a recommendation as to how the settlement funds are to be protected, usually by a blocked account, for the minor’s benefit.

WHO PAYS THE SGAL?

There is no set rule, but the parties should address this during their settlement negotiations, and come to an agreement on this issue. Some insurance companies agree to bear the cost. In some cases, the defendant(s) may make a settlement offer that would require the minor to pay for the SGAL out of the settlement proceeds.   One trend in the industry is for insurance companies to refuse to pay the SGAL associated costs (filing fee and SGAL fee) for smaller cases.  This is true even though the Court Rules REQUIRE the filing of the matter for appointment of a SGAL.   The insurance companies usually argue that the cost of following the Rule outweighs the amount of the actual settlement and therefore they refuse to comply with the Rule.  This can result in a drawn out process to get the settlement approved by the Court.

WHAT HAPPENS TO THE SETTLEMENT FUNDS?

This depends on whether the settlement involves an otherwise healthy minor, or someone with a long-term (or permanent) disability. It also depends on whether the net settlement (after all expenses are paid) is above or below $25,000.00.  Most of the time funds are placed into a blocked account until the minor attains the age of 18 may be removed only by Court order.  It is essential that our office always has a current address and phone number for the minor.  When the minor turns 18 the Court will demand that the funds be released, and we will help with that paperwork at that time.

WHEN CAN A PARENT OR CUSTODIAN USE A MINOR’S FUNDS?

First and foremost, parents should remember that the settlement funds belong to the minor; in most cases, the funds are set aside for the minor until adulthood. Any expenditure from the minor’s settlement fund prior to age 18 must have Court approval. Since parents have a legal duty to support their children under age eighteen, Court authorization for expenditures of the minor’s settlement fund is not readily granted.

WHAT IS A BLOCKED ACCOUNT?

A blocked account is an account with a financial institution from which withdrawals cannot be made without a specific Order of the Court. The financial institution must agree in writing not to release the funds unless authorized by Court order.

SPOUSES:

(This section to be supplemented)

Chapter Fifteen – LITIGATION:

GENRAL OVERVIEW:

  • Claims valued under $50,000.00 can be heard in either District Court or Superior Court Mandatory Arbitration.
  • Claims valued between $50,000.00 and $100,000.00 can be heard in District Court or Superior Court.
  • Claims valued in excess of $100,000.00 must be heard in Superior Court.

Arbitration:  Arbitration is a process similar to a trial.   An independent attorney is appointed by the Court to act as both the judge and the jury.   Both the Claimant and the Tortfeasor will present their cases through documentary evidence and witnesses.   In the end, the Arbitrator will decide who wins, and how much the award is.

If either party to the arbitration feels that the Arbitration Award is not justified, they may file a Notice of Trial DeNovo with the Superior Court, which sets the case for a full Superior Court Jury Trial.   No grounds or reason for the DeNovo need be given.

Insurance companies are filing DeNovos more frequently in recent years.    It forces both sides to spend more money fighting the same battle, and the insurance company typically has more money to fight the war than plaintiff’s attorneys.   You may wish to discuss the possibility of DeNovo with your attorney.

District Court:   The District Court rules are similar to the rules for arbitration.   However, an aggrieved party can only appeal the decision based upon an alleged error by the District Court Judge.   For smaller cases, a District Court trial is a quicker, and a more final way to resolve a case than through a Superior Court Arbitration.

Superior Court: Superior Court trials are extremely formal affairs and usually last a minimum of three days.   The losing party may appeal for errors alleged to have been committed by the Judge.   It typically takes more than 12-18  months from the date of filing the suit with the Court until the actual  trial

7 STEPS OF THE LITIGATION PROCESS

Here are the 7 steps of the litigation process and a rough timeframe for completion of each process.  Typically, the process takes 20 months from beginning to end.

Step 1. Initial Preparation of Litigation documents – 1 month

Step 2. Filing of the Summons and Complaint /  Service of documents upon the defendant – 3 months

Step 3. Pre-Discovery preparation – 3 months

Step 4. Discovery Process – 9 months

Step 5. Alternative Dispute Resolution – 1 month

Step 6. Trial Preparation – 3 months

Step 7. Trial – 1-3 weeks

Following is a summary of what you can expect in the course of each step of the Litigation process:

Step 1. Initial Preparation of Litigation documents – 1 month

During this step the paralegal will prepare the initial draft of the Summons and Complaint (S&C).  The S&C are the set of documents that are filed with the Court to start the lawsuit process.  These documents must properly name the parties and recite the facts of the case with sufficient specificity to allow the defendants to understand what they are being sued for, and why.  These documents are reviewed by the attorney before they are filed with the Court.

Step 2. Filing of the Summons and Complaint /  Service of documents upon the defendant – 3 months

The Summons and Complaint (S&C) must be filed with the appropriate Court along with the necessary filing fee.  The filing fee is $83 for District Court cases and $250 for Superior Court cases.   Upon filing the documents with the Court, we have 90 days to personally serve copies of the S&C on the defendant.  That means we hire a Process-Server to personally deliver a copy of the papers to the defendant.    Process servers typically charge $200-$800 per person to serve papers.  Occasionally the cost is even higher because the defendant may have to be located in order to serve the papers.  If the defendant has moved since the accident, or is hiding or evading service, the process server must exercise due diligence in his efforts to find and serve the defendant before we are allowed to effect service by filing the papers with the Secretary of State.   It is important that the Litigation process is started well before the Statute Of Limitations (SOL) so as to avoid the SOL running out before the defendant is properly served.  In addition, the Superior Court issues a Civil Case Schedule which sets deadlines for each phase of the lawsuit.  Most District Courts do not issue Civil Case Schedules, and it is up to the attorneys to keep the case moving forward.

Step 3. Pre-Discovery preparation – 3 months

The paralegal prepares and sends to the client the Pre-discovery questionnaires.  This is a set of questions that we anticipate the defendant will ask during the discovery process.  There are typically 20-40 questions that most defense attorneys ask of our clients – so we start the process of getting the answers through the use of pre-discovery questionnaires.    There are strict time limitations for answering the defendant’s written questions during the Discovery Process – so by anticipating their questions and getting answers in advance, we are better prepared and less rushed when we get the questions from the defense.

Step 4. Discovery Process – 9 months

There are typically 4 main components to the discovery process: a) written interrogatories; b) requests for production; c) Depositions; and d) reports of experts.  The Court sets out certain deadlines when a lawsuit is filed.  The discovery process ends as of the predetermined “Discovery cutoff” date set forth by the Court.

a.) Each side is allowed to send written questions to the opposing side.  These questions are called “interrogatories” and there are usually 20-40 written questions, however there can be more.  Upon receipt of the interrogatories, we have 30 days in which to provide written answers to the questions.  Most questions require complete and full answers; however some questions may be deemed inappropriate by your attorney.  Each question must be reviewed by an attorney to determine whether an answer is appropriate.  If not, the attorney will provide a written objection to the question.  Otherwise, the paralegal will fill in the answers from the information we have in your file.  The paralegal will contact YOU, the client for any information requested that is not already in your file.  Again, we have only 30 days to answer the questions, so your prompt response is necessary.

b.) Each side is allowed to send an unlimited number of Requests for Production.  These are requests for documents and other tangible evidence, such as photos, medical records, estimates, and declarations or statements.  Like interrogatories, responses must be provided within 30 days of receipt of the request.  The paralegal typically copies the necessary records and documents.  This can be very time consuming depending on the size and complexity of the case.   Often documents are requested by means of a “Records Stipulation”.   By having the client sign a stipulation to obtain records, the opposing side is able to procure the records directly from the source through an outside document retrieval company.  Procuring records through a stipulation costs additional money, but it assures each side that the records have not been altered or tampered with.

c.) Usually sometime after all interrogatories and requests for production have been answered, each side will request depositions of the parties and witnesses.  A deposition is an interview conducted before a court-reporter.  The deponent (person answering the questions) is sworn under oath to tell the truth – just as they are in Court.  The opposing attorney is allowed to ask questions and the entire proceeding is recorded by the court-reporter and transcribed into a transcript.  The transcript is considered “sworn testimony” and can be read to the jury under certain circumstances.  Depositions usually last 2-7 hours and most often occur at the attorney’s offices.

Depositions are compulsory.  That means the Court will Order each side to participate in a deposition.  Failure or refusal to attend a deposition can result in monetary fines and penalties being levied upon the client, including a complete dismissal of the case.

d.) Doctors and accident reconstructionists are frequently asked to provide expert opinions regarding the cause of the accident, or the injuries suffered as a result of the accident.  In the course of the discovery process each side must obtain the necessary expert opinions that they intend to provide in trial, and they must disclose those opinions to the opposing side.  Failure to disclose the expected use of an expert, or the experts expected testimony can result in the Court prohibiting the testimony of the experts.

Expert testimony – whether a doctor or an engineer – is very expensive.  Doctors traditionally charge $1,000 per hour or more to participate in the litigation process.  It is not uncommon for a doctor to charge $500 for a half-hour phone conference with the attorney to discuss his opinions regarding the injuries and treatment.  The typical rate for live testimony by a doctor is $2,000 per hour.  $5,000-$10,000 is the average billing range to have an accident reconstructionist or crash analyst evaluate the facts of an accident and provide a written report of findings.

Step 5. Alternative Dispute Resolution – 1 month

Court Rules require that the parties participate in Alternative Dispute Resolution (ADR) before they are allowed to start the trial.  Typically the Court will provide a date by which ADR must be completed.  If there is no certification that the parties have engaged in meaningful ADR by the required date, the Court can penalize the parties and disallow the case to go to trial.

The most common form of ADR is Mediation.  Mediation is simply a form of assisted negotiations.    An independent mediator is hired to work with both sides to see if a resolution can be found to settle the case short of trial.  Mediators cost $400-$1,000 per side.   Mediations usually last 4-7 hours and are held at a mediator’s office – usually in Seattle or Tacoma.  Mediations are held after the discovery process has been completed.  Each side has all the possible information they could find in order to best evaluate the merits of the case.  Many cases that go to mediation settle.  The cases that do not settle in mediation proceed on to trial.

Step 6. Trial Preparation – 3 months

During the 3 months leading up to trial, the attorney meets with the witnesses and experts to prepare them for the trial.  In addition, the documents that will be presented in trial must be copied and pre-numbered and provided to the Judge and the opposing side.  This is a time-consuming process because often there are thousands of pages of medical records and bills to be copied and prepared for trial presentation.  All references to inadmissible information (such as references to insurance companies or attorneys) must be redacted (blacked out) prior to presentation to the Court.

In addition, both sides must prepare Trial Briefs outlining the case and the issues expected to be provided to the jury.  Motions must be prepared by each side regarding evidentiary issues – such as improper disclosures by experts, or the offering of opinions by experts that do not have the necessary foundation in science.  Special Motions In Limine must be prepared for the day of trial.  These motions determine which witnesses may be in the Courtroom, what issues the other side should not be allowed to raise, and a host of other procedural and administrative issues.

Jury Instructions must be prepared in advance and provided to the opposing side and the Court.  These instructions are the guidelines that the jury must follow in their deliberations of the case.  There are literally hundreds of possible jury instructions for any particular case.

Step 7. Trial – 1-3 weeks

Trials typically last 1-2 weeks.   The first day is traditionally spent selecting a jury and arguing pre-trial motions.  Often the opening statements are made by the attorneys late in the day and the first witnesses may testify.  The following days are composed of the presentation of the witnesses from each side, the presentation of the experts, closing statements and jury instructions.  Finally the jury deliberates and comes to a verdict.   The whole process is stressful and emotional and somewhat exhausting.  In the end, each side has the opportunity to present their case and the outcome of the case is delegated to the jury.

At the end of the trial, the jury will give a verdict.  If the defendant is proven to be liable for the accident, the verdict will be in favor of the Plaintiff (you).  Then the jury must determine HOW MUCH to award the plaintiff.  Sometimes the jury awards ALL the medical costs and general damages.  Sometimes the jury awards PART of the medical costs and some general damages.  Sometimes the jury awards NONE of the medical costs.  And sometimes the jury awards the medical costs and NO general damages.  Exactly WHAT a jury will award is an unknown – it is a gamble.  The best prediction of the outcome of your case will be the experience and recommendation of your trial attorney.

EXPECTATIONS DURING THE LITIGATION PROCESS

Your participation in the Litigation Process is crucial and determinative of the outcome of your case.  Failure to respond to requests for information can adversely affect your case.  Lack of cooperation in attending depositions or physical examinations can result in dismissal of your case by the Court.  However, responsible attention to the directions of your legal team can improve the outcome of your case.

Here is what you can expect during the Litigation Process:

You will be contacted at each step of the process.  Usually you will be contacted  by a paralegal.  Phone calls and emails are the preferred mode of communication.  The paralegal will walk you through each step of the process and prepare you for upcoming events.

The paralegals usually handle responding to the interrogatories and requests for production.  They will talk to you about the information and follow up with you to get the answers in a timely manner.    The attorney reviews the answers, but typically is not directly involved with the client during this step in the process.  Stipulations (a form of agreed records request) may be sent to you for your signature and prompt return.

You will have several meetings with the attorney handling your case.  You will meet with your attorney to prepare you for the deposition.  The pre-deposition meeting will involve having you watch a video presentation providing valuable insight to the deposition process.  The video is useful for understanding depositions in a general sense, and will assist you in understanding what to expect at deposition.

After you have reviewed the video you will meet with your attorney to discuss the issues specific to YOUR case.  Your attorney will focus on the facts of YOUR specific accident, the injuries YOU suffered and the effects on YOUR life.  Your attorney will provide you with guidelines that will help you prepare for your deposition.   You will have the opportunity to discuss your questions in advance with your attorney so that you feel prepared and confident.

Your attorney will be seated next to you throughout the entire deposition process.   He/she will stop the proceedings to make sure that you are not overly stressed or anxious.

After the deposition the opposing side may request that you attend a Defense Medical Exam (a DME or CR35 Exam).    Under the Court Rules, any party may request a physical exam of another party if there is an issue regarding the existence of on-going pain or injuries.  If they request such an exam, your attorney will contact you to discuss your options, set a date for the exam if necessary, and schedule a pre-Exam conference with the attorney.  Similar to the deposition preparation, you will watch a video regarding DME’s to assist you in understanding the general procedural process of the DME.  After watching the video you will meet with your attorney to discuss your expectations and questions regarding the DME.  Your attorney will go over the likely outcome of the examination.   A staff member of the firm will attend the DME with you, but NOT YOUR ATTORNEY.  Your attorney cannot attend the DME because your attorney cannot be called as a witness in your case.   If the DME examiner does something unacceptable, the staff member can be called to testify as an eyewitness to the examination.  These exams are usually audio-taped, and occasionally video-taped.

After the depositions and medical exams (if any) are completed, your legal team will focus on the presentation of any expert testimony they feel is necessary to your case.  Expert reports may be requested from doctors or engineers.  Witness statements may be requested from friends, family or others who have potential testimony that would help your case.   You may notice that you will receive less contact from you paralegals after the depositions and DMEs.  That is because the focus of the case shifts from YOU to OTHER evidentiary matters.

Towards the end of the discovery period your attorney will request mediation with the opposing side.  You will be contacted by the paralegal for possible mediation dates.  Once a date is set, a pre-mediation meeting will be scheduled with you and your attorney.  Your attorney will go over the procedural aspect of mediation so that you have reasonable expectations of the process.  He/she will also go over the valuation of your case, the possible settlement negotiations and potential outcomes.  Your attorney will be prepared to discuss with you the likely outcomes of mediation and trial.  The pre-mediation conference is when your attorney will be in the best position to give you pointed advice regarding the pursuit of your case.   By the time mediation occurs, all the available information has been gathered and both sides will have better understanding of the strengths and weaknesses of the case.  A careful evaluation will be made and your attorney will provide you with the best recommendation before entering into mediation.

Your attorney will be with you throughout the mediation.  You will NOT be in the same room as the opposing side.  They will be in an entirely different office.  The mediator will move back and forth between your office and the office where the opposing side is located.   The goal in mediation is to find a settlement value of the case that satisfies both sides.   The reality is that settlement is always a compromise.  A successful settlement is when both sides compromise – one side is unhappy that they paid too much – and the other side is unhappy that they accepted too little.  As strange as it sounds, a good settlement is where neither side is completely happy.  If one side is happy, either somebody paid too much, or somebody accepted too little.

The best way to achieve a successful settlement in mediation is to listen to the advice of your attorney.  He/she has your best interest at heart and will work diligently to get the best possible settlement available to you.

If your case should fail to settle in mediation, your legal team will enter the trial-preparation stage.  This is the most expensive stage.    At this time, the experts and witnesses must be prepared for trial.  Your doctors and experts will be reviewing all the materials and meeting with your attorney.  These experts require payment in advance for these meetings.  Experts who will not be available to attend trial have to have their testimony video-taped in a “perpetuation deposition” so that their testimony can be presented by video to the jury.    Courts require special videographers and special court-reporters to prepare and present such video-taped testimony.  Hundreds of man-hours and thousands of dollars are spent between the mediation and trial.   Witnesses must be subpoenaed and prepared to testify.  Visual presentation (posters and power-point presentations) must be created, as well as numerous documents that will be presented to the jury.

If your case proceeds to trial, you will have at least one pre-trial conference with your attorney to go over your trial testimony.  You may be provided with a list of questions that your attorney expects to ask you, as well as special instructions on how to answer questions and address the jury.  Your attorney may even have you practice answering questions and prepare you for anticipated questions from the opposing side.  You will be expected to attend every day of trial.  This can be expensive for you as you will have to miss work, and your spouse may be required to attend as well.  You should anticipate saving up vacation time for your trial.  This is a cost that is not compensable to you.

Your attorney will be with you during the entire trial.  Frequently a paralegal will assist the attorney throughout the trial with handling exhibits, Power Point presentations and taking notes on witness testimony.  Paying attention to the jurors is especially important as they are the ones deciding your case.  Your attorney will be concentrating on raising and defending objections and formulating cross-examination questions of the opposing side’s witnesses.

Chapter Sixteen – CLOSING REMARKS

We hope the foregoing Guidebook has been helpful for you in understanding the processes involved in your case.  We strive to keep our clients informed and updated on their cases, and to keep them engaged in the progression of their claims.

If you have feedback or comments regarding the materials provided, the processes we use, or any other aspect of our representation – Please feel free to contact us any time at the following:

The Law Offices Of
STEVEN D. WEIER, PS
331 – Andover Park East
Tukwila, WA  98188
253-931-0332
Fax 253-735-2845
info@nullweierlaw.com