Road Map of a Personal Injury Case.
Many of our clients want to know at the outset exactly what will occur in the course of our representation. The White Plains accident attorneys at Worby Vecchio Edelman will always explain the litigation process to clients, with the understanding that the answer will often depend upon variables unknown to us at the beginning of a case.
The Discovery Process
Once a client retains our firm, we send for any hospital records, Emergency Room records, or perhaps treatment records, if the client has already had surgery. We will generally wait before we send for records from a treating physician or physical therapist, because in many cases the client will not yet have completed treatment with those providers. We also send a Letter of Representation to a potential defendant, or to a potential defendant’s insurance company to alert the insurance company of our representation. We can usually identify a vehicle owner’s insurance company from the police report. If we have a name and address of a vehicle owner or operator, we can also run a search through the New York Department of Motor Vehicles in order to ascertain insurance coverage. In motor vehicle accident cases, we also make sure that our client has properly filed for No Fault benefits, because that filing has to be performed within thirty days of the date of the accident.
Some of our cases involve claims against municipalities – a City, Town, Village or County – and in those cases, we make sure that a Notice of Claim is filed within the applicable ninety day time period.
In most cases, we don’t wait long before we start a lawsuit; we have often found that an insurance carrier will not consider a serious settlement without a lawsuit having been filed, so we don’t delay on that action. Clients are always advised that the fact that a lawsuit is being filed does not necessarily mean that a case will proceed to trial.
Filing a lawsuit brings certain procedures into play, most notably the process of “Discovery” (or “Disclosure”, as it is known in New York). Essentially, each side has the right to conduct a deposition (a pre-trial, out-of-court hearing) of the adversarial parties, and also any witnesses to the accident. The Defendant is permitted to conduct a physical examination of the plaintiff with a doctor of the defendant’s choosing (the notoriously mis-named IME, or Independent Medical Examination). In addition, the plaintiff is required to give the defendant’s attorneys medical authorizations for all medical treatment relevant to the accident. (Questions will frequently arise as to the scope of medical disclosure, that is, what previous medical conditions are or are not related to the current condition). We advocate on our clients’ behalf in order to minimize this exchange.
The Court where the lawsuit is pending will monitor the progress of these pre-trial proceedings, in an effort to have the parties certify that a case is trial ready. We strive to move a case along as quickly as possible.
Ready for Trial
Once the Discovery process is complete, the case will be ready for trial. In some instances, a defendant will request that the court dismiss the case before trial. There is a procedure known as Summary Judgment, where a defendant essentially argues that even assuming that a jury were to believe everything to which a plaintiff testifies, the defendant still has to win the case as a matter of law. These Motions are especially prevalent in fall down cases, and in certain motor vehicle cases, where a defendant will argue that the plaintiff’s injuries do not qualify under the New York No Fault Threshold Law. A Motion for Summary Judgment is a very serious Proceeding, because if the defendant wins that Motion, the case will be dismissed, meaning that it will not go to trial, and there will not be a settlement. While we cannot prevent a defendant from making a Summary Judgment Motion, the White Plains accident attorneys at Worby Vecchio Edelman LLP have years of experience defending these types of motions. Every attempt will be made to defeat all dismissal motions brought against our clients. We should add here that in some cases where liability on our client’s behalf is clear, we will make our own Motion for Summary Judgment, asking a Court to find that the defendant was negligent and therefore liable as a matter of law, without the need for a trial on that issue. Depending upon the exact facts of a case, sometimes we even make that Motion before our client has to testify at a deposition.
There are other steps taken before a case is either settled or goes to trial, and those steps – Mediation and Arbitration, High-Low Agreements within an Arbitration or Trial, Pre Trial Conferences, Appeals, and the Trial itself – will be the subject of next month’s column.
Contact the Attorneys of Worby Vecchio Edelman, LLP
Be sure to call the White Plains accident attorneys at Worby Vecchio Edelman if you or a loved one are the victim of any type of accident. Call us even if you’re not sure whether you have a case. We offer a free, no obligation consultation, and we’ll be able to tell you whether we think you do have a case, or whether we think that you don’t have a case. We always work on contingency, so there’s never a fee unless we recover money for you.