Many Steps, Lots of Care I just had a problem with suits from a tailor I have been using for more than 20 years. Some of my measurements changed, but when I got the suits, they were way off in areas that we didn’t change. For instance, the jackets were way too long. Believe me, I’m not getting taller. In a similar vein, my new glasses have to go back. They are just unwearable. The left lense only works if I tilt my head one way, the right if I tilt it a different way. It is impossible to see clearly from both sides at once. This not uncommon state of events got me thinking about what it takes as a motorcyle accident attorney to process a case correctly. People often wonder what the difference is between lawyers. Here’s my answer. Initially, it is important for me to know what motorcycle is involved. This tells me something about the rider, and it sets the parameters for the mechanics of the accident. A sport bike may be quick and maneuverable, but it also has great brakes. Does the seating position lead to having a foot hovering over the rear brake? Is it the kind of bike that is more likely ridden with two fingers covering the brake, or more likely not? How upright is the rider? From the first phone call, the level of detail is completely different from what other lawyers are doing. The injuries in motorcyle accidents tend to cluster as well. Lots of lower limb and foot injuries. Many shoulder injuries. Too many head injuries. Often a concussion is missed while the emergency room looks for or treats broken bones. A sensitivity to these issues leads to pursuing injuries that others miss completely. Early on, we have a conversation about the property damage. Motorcycles frequently have after market parts, are often difficult to value compared to cars, and loss of use damages are based on motorcycle rental costs, not the cost of a rental car. Patience is required to walk clients and insurance adjusters through these difference. It takes time. When we sit down together for the first time, we will discuss what the process will be for valuing the case. This leads naturally to a discussion of what needs to be done so that the insurance company will understand the nature of the injuries, and how they affect the particular client. This needs to be done in a way that works with the insurance carrier’s internal systems. If not, it simply does not get into the computer, and does not count when the insurance company evaluates the claim. I explain how the client can work with their treating doctors to document the different aspects of the injuries in a way the insurance company will understand. I think it is important to know what the course of the case will be. We’ll talk about the steps involved, how we will handle each step, and how to prepare so that you feel confident and in charge of the process. There is no reason to go to a deposition and feel like the other attorney is beating you up. Part of success in a case is making sure that the doctors have all of the information, so that their records and reports are complete. The same information needs to be provided in writing, in answers to the written questions, called "interrogatories" that the other side will send. The same information should be presented a third time in person, in a "deposition" that will take place before a court reporter. It will be presented a fourth time to a defense doctor when they do a defense medical examination. If only pieces of the puzzle are presented, these four presentations of information will differ in parts. This creates questions and uncertainty, and works against getting a good settlement. The lawyer needs to make sure the client understands the important issues, and is prepared to explain them completely in a way that will be understood by the insurance company. The first time we meet, we will go over the way in which fees are charged, and how costs will be covered for the case. Necessary paperwork needs to be correctly prepared, so that we can get the police report, medical reports, proof of wage loss, evidence of damage to the motorcycle and gear, and so that investigation can be done. Basic information must be organized and recorded so that the needed documentation and proof can be put together. Unlike most lawyers, I make it a regular practice to file suit immediately. I have learned that there are many benefits to this. Most important, insurance companies love to stall. By starting the lawsuit immediately, as much as two years can be cut off the amount of time the case will take. Most lawyers wait until the injury is permanent and stationary, then they try to settle, and only then do they file suit. There is no reason that the case cannot be settled after suit is filed. In most places, it takes at least a year to get to trial. This is usually more than enough time for the injuries to become stable enough to evaluate. If it happens that the injury is still in a state of flux, a motion can be made to the court to allow additional time before setting a trial date. On the other hand, if a lawyer does not start the suit immediately, it is very unlikely that a court will allow a case to jump its place in line and get an early trial date. As soon as the suit is filed, it needs to be served on the defendant by a process server. Another advantage of filing suit immediately is that it helps avoid losing the defendant because they moved after the accident. Earlier I mentioned "interrogatories". In California, these questions have been standardized in a form created by the judicial council. In other words, we know what the questions will be even before we receive them. Our office sends these questions to our clients soon after we file suit. In other offices, they wait until they get the questions, then send them out, and then often have trouble getting the answers out in the time allowed. This is handled by getting a continuance of the due date. Because our clients begin working on the answers before the questions are ever received, we can take the time to do a thorough job on the answers, and we can send them out early. It creates a very different impression of how we view our case. While this is going on, we are coordinating getting the medical records, and reviewing them so that we can work with our clients in getting medical treatment and any special diagnostics or specialist workups that may be needed to prove an injury or treat something that is going untreated. This needs to be completed if the insurance company is to be satisfied that the medical records support the claims being made. If the medical workup is not complete, it is hard to prove the injuries, and impossible to convince an insurance company to pay for them. After the defense has the interrogatory answers and the medical records, they will set a deposition. This is a critical step, because it is where the defense attorney gets to ask questions with a court reporter taking it all down. It is the one chance they have to see how you will come across at trial. We see this as the best opportunity you will have to explain your case, and to provide details about the way in which your injuries interfere with your life. From the first time we meet, we will be preparing to make the most of this opportunity. By the time the deposition happens, you will be completely ready to do your best. Further, because we will have provided full, complete, and useful interrogatory answers, the defense attorney will have all the information needed to explore your case in detail. This helps everyone, because the interrogatory answers, medical records, and deposition answers should work together to leave few unanswered questions. Open questions make insurance companies nervous, and this makes it difficult to settle a case for full value. We want and need to provide the answers. After the deposition, the insurance company will set an appointment with a doctor they have selected to examine you. Typically, these doctors charge thousands of dollars for an examination that usually costs only a few hundred dollars. Many of these doctors make a half million dollars a year, or more, by doing these defense medical examinations. Believe me, for that kind of money, the insurance companies get some very biased and often untruthful reports. It is common for attorneys to send their clients to these examinations with little preparation, and no one to go with them. We make it a practice to set limits on these examinations and often negotiate what will take place. We are known for being willing to go to court to protect our clients from improper examinations, such as examination that includes irrelevant parts of the body. We don’t allow extensive "second depositions" where a doctor abuses the examination history taking to ask improper questions or to probe old history that isn’t relevant. Some firms send someone other than an attorney to these examinations. That works if the person is properly trained. However, our normal practice is to go with you, and we tape record everything that takes place. That way, if there is a dispute about what was said, we have evidence. Once the defense medical examination report is complete, your case is getting ready for settlement. At this point, we review everything we have, and look at whether anything else is needed. Somewhere along the line, we may decide that your case needs expert testimony on one or more issues. Maybe we need to find a specialist who has expertise with one of your injuries. We have the medical records, but we may ask for medical reports if something needs amplification. Of course, if we need experts on motorcycle related issues, we know the best experts, and we work with them regularly. At this point, we are ready to make a demand. Sometimes this is done in conjunction with a settlement conference at the court. Sometimes we set up a private mediation. The insurance companies actually take less than 2-3% of their cases to trial. The settlement process involves convincing them that your case should be paid as opposed to going to trial. Look at the preparation that has gone into the case up to this point. Do you think that the insurance company wants to go to trial on a case that is this well prepared? Of course not. They are looking for the cases that are not prepared, or that have issues they think they can win. They are not looking for big losses. Settling your case as opposed to going to trial typically saves you tens of thousands of dollars. Better yet, if you settle before the pre-trial expert depositions, you can save even more thousands of dollars. This is why our firm makes every effort to get your case processed correctly and in a timely fashion. It leads to better results, and far less cost and hassle. Even so, on some occasions, trial is necessary. In these instances, your case is well prepared, and the small issues have been identified and handled if possible. You have the best chance of success that you can have, and the confidence of knowing that you are ready to go, with no unneccessary surprises. I won’t get into the many things that need to be done to get the case ready for trial. However, exhibits demonstrating the injury may be necessary. These can include drawings based on x-rays or MRI’S, portions of the medical records, enlargement of photographs, and many creative exhibits to show the jury what took place. Jury instructions need to be prepared. Motions are made to the court to exclude material that should not be allowed into evidence. Opening and closing statements have to be written. You need to be prepared to take the stand. Experts and doctors need to be lined up, and juggled as the schedule changes. Witnesses need to be lined up and prepared to come to court when needed. Sometimes the trial date is shifted or changed, and all of this starts again. While anyone can make mistakes, we work hard to see that each of these steps leads to a good result for our clients. After all, that’s why they come to our firm and recommend us to their friends.