Ebony Utley

eUtley@nullweierlaw.com

Ebony has been a great addition to the firm and we are happy to be part of her legal career.  She received her Paralegal Certificate from Tacoma Community College then her Bachelor’s degree in Criminal Justice from St. Martins.  She plans to enter the Law Clerk Program and become an Attorney.  She is an excellent Medical Records Clerk and she uses her problem solving skills to effectively obtain medical records for our clients.  With her curiosity and resourcefulness she is continually learning new and better ways to serve our clients.

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Personal Injury Claimant Guidebook

Download the PDF version: PI CLIENT GUIDEBOOK

Contents:

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 Spouses and Children (TO BE SUPPLEMENTED)

Chapter Fifteen – The Litigation Process

FORWARD

The Law Offices of Steven D. Weier, Inc. 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 guidebook is a simplified explanation of several topics which you, as 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.

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, Inc. PS will make a systematic effort to keep you apprised of the status of your claim on a regular basis by providing you with a monthly Status Questionnaire / Report.   It is your responsibility to fill out and return the questionnaire.   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 means putting our clients’ needs ahead of our own needs.  It means taking and dealing with difficult cases because our client deserves to be represented.   It means 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.

THANK YOU!

Thank you for bringing your claim to this office.  Please let us know how we did processing your claim.  We appreciate constructive criticism of our efforts and procedures.   If there is anything which you feel we could do better, let us know.   If you are satisfied with our performance, please let your friends know.  Our reputation rests with our clients.   It has been said that “One happy client will tell one other person, but one unhappy client will tell ten.”  By providing you with the foregoing information we hope to educate you a little on what we are doing for you so you too can be one happy client.

Chapter One – WHAT 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 to 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.

THE PARTICIPANTS:

Following are a list of the participants 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 claimant or party to a lawsuit who files the suit (you).

 DEFENDANT:  The person or Tortfeasor being sued.

PARTY:  A plaintiff or a defendant.

Chapter Two WHY DO I NEED AN ATTORNEY?

First, a claimant needs an attorney for advice on their right and then for being their advocate.   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 in at different levels and at differing levels of priority.   Understanding which insurance coverage must pay your bills and at which point in your treatment 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.

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 (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 the 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 outside medical experts to testify to the causal relationship between the accident and injuries.

Liability is established through facts and evidence of the dynamics of the accident.   Witnesses and accident reconstructionist are useful to establish how the accident happened.  The attorney must then show the nature and effect and extent of the injuries suffered by the Claimant.   Medical testimony is often necessary to establish the nature and extent of the 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 reconstructionist 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 effected the Claimant’s life.

The client should keep in mind all the things that the attorney has to prove to reach a good settlement.

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 accident, you can receive maximum 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 repair.  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 y our 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) the PIP/Med-Pay on the coverage of the vehicle before you r personal PIP/Med-Pay will start paying your bills.

You must 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 vehicles you must purchase Med Pay for both if you wish to covered while in either vehicle.

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 choose your liberally 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 (Dept. of L&I).  However, some larger companies “opt-out” of the State system and are self-funded (think Boeing, Alaska Airlines, etc.).

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

Like other form medical payments the Dept. Of 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 allows 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

THE INVESTIGATION:

The attorney 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 reconstructionist 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.

Chapter Six – PROPERTY DAMAGE ISSUES

Vehicle Damage

Property Within the Vehicle that was Damaged

Clothing and Personal Effects Damaged

Dim munition In Value

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 any shop where you would want to repair the vehicle;
  3. Decide if you would like to go through your insurance or insurance of the at-fault party:
    1. go through your insurance company- you will need to have your own “collision” and “rental” :
      1. it would be faster
      2. you will need to pay a deductible, which you will get back once your insurance company will get reimbursement from the at-fault insurance
      3. If the other party did not have insurance/enough insurance- your UIM/UM coverage will apply here, also will have a deductible.
    2. go through insurance company of the at-fault party
      1. might take longer while company investigates the facts of the accident/coverage
      2. you will not need to pay a deductible.
  4. Forward estimates and photographs to insurance adjuster;
  5. Let them know where you would like to repair the vehicle and ask to set up a rental vehicle;
  6. Take your car for repairs.

Take your car to at least two repair facilities to obtain estimates.  Some facilities are considered “preferred” with insurance companies.  Most of the time, it means that insurance adjuster would not need to come out independently of the shop to take a look at your vehicle damage.  Also, it means that the body shop has different prices for repairs and might be using aftermarket parts on your vehicle. However, you are more than welcome to take it to any reputable facility.  Please note that most dealerships do not perform body work, but they might have a suggestion for a local shop that does great work.

Once estimates have been obtained, forward them to the property damage adjuster.  It is possible that the adjuster will issue a check for repairs 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.

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 do not need a rental vehicle, you might be able to receive compensation for loss of use for your vehicle
  • 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.

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.  Remember not to blame the bearer of bas news – your attorney is also required to tell you information, even if it’s good, bad, or ugly.

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” is meaningless because we know there are more offers to consider.

Chapter Thirteen – THE SETTLEMENT PROCESS:

You should know that accepted 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 SPOUSES AND CHILDREN:

[this section to be supplemented]

 Chapter Fifteen – LITIGATION:

If your case has been placed into “Litigation” – that means a lawsuit is being filed on your behalf against the opposing party.   There are 3 reasons that a case will be placed into Litigation:

  1. The opposing side has made unreasonably low offers of settlement;
  2. The opposing side (Defendant) has denied responsibility for your injuries; or
  3. The Statute Of Limitations (SOL) is about to expire.

If the opposing side refuses to value your case at a reasonable amount, the alternative to accepting a low offer is to file a lawsuit in hopes that your case will either settle for better compensation, or proceed to trial and a jury will determine the value of your case.

If the opposing side denies responsibility for causing your injuries, your only options are to drop your case and walk away – or file a lawsuit.

The Statute Of Limitations (SOL) for injury claims in Washington State is 3 years from the date of the injury.  Your right to bring a lawsuit for injures disappears on the 3rd anniversary date of your injury.  If the case is not settled or if you have not filed a lawsuit by that date, your right to settle the case or file suit expires and you have no recourse.  Your case is done and gone.

For one of the above reasons your case would be transferred to the Litigation department.  Following is a timeline of the Litigation process so that you have a framework to understand what is going on, and to give you some idea of what to expect from your Litigation team.

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

Insurance companies are filing De Novos 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 De Novo 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 trial.

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 14 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 12-18 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 –1-2 months

Step 3.    Pre-Discovery preparation – 1 month

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 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 – days 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.

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 Reconstructionist 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 intent 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.   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.

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.  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 through 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 time consuming and expensive.  In the end, each side has the opportunity to present their case and the outcome of the case is delegated to the jury.

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.

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Cinthia Barbosa Guzman

Cinthia Barbosa Guzman: Spanish Liaison and Opening Investigations

Cinthia Barbosa Guzman: Spanish Liaison and Opening Investigations

cguzman@nullweierlaw.com

Prior to coming to the firm, Cinthia was a hostess at a local restaurant while attending college.  She started her schooling at Renton Technical College in their Legal Assistant program and finished her Associate of Arts at Highline Community College.  Cinthia developed a good clerical foundation from her schooling which has been an asset to her position as an Opening Investigator.  Her hosting prepared her for engaging with our clients and healthcare providers, where she is professional and charming.  We are happy to have her part of our team.

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Shannon Toppen

Shannon Toppen Paralegal

Shannon Toppen: Paralegal

Shannon was born in Terrace, BC Canada and her family moved to  Washington a few years later.  Before coming to the firm in 2017, Shannon had received her AA specializing in paralegal studies.  She started working as a paralegal in 2001 and since 2004 has primarily focused on personal injury litigation.  Her passion for helping injured people stems from being involved in a few catastrophic car accidents when she was younger.  Our clients benefit from her organization, and focus.  We are happy to have Shannon as part of our team.

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Nick Sunderland

Nick Sunderland: Settlement Proposal Writer

Nick Sunderland: Settlement Proposal Writer

nSunderland@nullweierlaw.com

Nick graduated from the University of Wisconsin in 2011 with a bachelor’s degree in journalism. He worked seven years in the newspaper industry, beginning his career with a four-year stint covering high school sports at the Wisconsin State Journal in Madison, Wisconsin. Nick then spent nearly three years covering Division I college basketball for the Daily News-Record in Harrisonburg, Virginia. Now living in Seattle, he has decided to pursue his interest in courts system on a professional level.

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Molly Cebulla

Molly Cebulla: Receptionist

Molly Cebulla: Receptionist

mCebulla@nullweierlaw.com

Molly is a recent graduate of Kentlake High School, born and raised in Washington State. She is an extremely active and dedicated member of Job’s Daughters, where she volunteers her time and energy to serving the community. Molly aspires to have a career in music and performance, and anticipates attending University of Puget Sound in the near future. Her cheerful disposition and can do attitude make her the perfect addition to our reception team!

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Whitney Hilde

Whitney Hilde: Opening Investigations

Whitney Hilde: Opening Investigations

wHilde@nullweierlaw.com

Whitney is an integral part of our Opening Department. Her passion to help others is reflected in her attention to detail while analyzing and resolving client matters. She received her BA in Criminal Justice and Psychology from Portland State University, where she also played 4 years of D1 Women’s Soccer. While in college she was an intern at the District Attorney’s office in Multnomah County and a volunteer at a youth correctional facility in Portland, OR. She currently is head coach for 2 Girls Soccer teams in Bellevue. Whitney’s dedication and determination is unmatched, we are fortunate to have her as part of the team.

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Celebrating 20 Years of “Doing the Right Thing… Always”

20 Years of Doing the Right Thing… Always

Thank you to our clients and community for 20 wonderful years.  We couldn’t have done it without you.

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Winner Best of Tukwila 2017

Thank you for all of your votes.  Steven is so honored to be recognized by the community as the Best Attorney of Tukwila for 2017.  Since moving our offices to Tukwila the surrounding communities have embraced us.  This makes our 3rd year in a row that we’ve won Best of Tukwila.  Our first year hear we were honored with being finalists.  We want to take the time to thank all of our clients and partners that have supported us in Tukwila, Renton, Kent, Auburn, Burien, Federal Way, Des Moines, Seatac and Seattle.  We couldn’t have done it without your support.

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Catherine Trejo

Catherine Trejo - Intern

Catherine Trejo: Intern

Catherine began her time with the firm in October of 2016 through Renton Technical College’s Intern Program, where she is currently pursuing a Legal Assistant degree. Although new to our firm, she certainly is not new to the industry. Having worked as a bookkeeper and legal secretary for a firm in Colorado, as a secretary, docket clerk, and court clerk for the Denver Juvenile Courts, and finally a court technician for the Seattle Youth Court, Catherine loves the challenges that the legal field present her. As a foster parent and a dedicated volunteer to her church, she enjoys playing an important role in people’s lives, helping support them during the most difficult of times. We are very fortunate to have Catherine here with us while she finishes up her education.

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