Road Map of a Personal Injury Case – Part II
Last month we began an explanation of how a personal injury case is handled. We left off at the point where discovery has been completed, and the case is ready to be resolved. We now continue with that explanation.
In some cases, a defendant’s attorney will seek to have the case dismissed before trial; this process is known as “Summary Judgment”. In making a Motion for Summary Judgment, a defendant argues that even if a jury were to believe everything that a plaintiff says, the defendant still has to win the case on the law. The White Plains personal injury attorneys at Worby Vecchio Edelman are well-versed in contesting these Motions, and have years of experience in doing so. We maintain a collaborative effort, so that several attorneys review the defendant’s arguments, and the papers that we submit to the Court.
Most of Our Cases Settle Prior to Trial
We will always entertain settlement overtures from a defendant or its insurance carrier when a case is ready to be resolved, and we will initiate these conversations ourselves, but at the same time we prepare each case as if it will ultimately go to trial. By handling cases in this fashion we are prepared to try a case that does not settle. Most of our cases do settle prior to trial, and a large percentage of cases that do proceed to trial settle before a verdict is reached. Some clients are surprised to learn that an insurance carrier is not required to settle a case, and that a Judge cannot order an insurance carrier to do so.
We will generally contact a defendant’s attorney or insurance carrier ourselves well before the time that a case is ready to be resolved so that when a case is ripe for settlement we will have already established communication. A good percentage of our cases are settled on the phone, either with an insurance representative, or a defendant’s attorney.
Alternative Dispute Resolution – Mediation and Arbitration
However, some cases cannot be resolved in this manner, either because of a complicated legal issue, because of multiple defendants with competing claims against each other, and for other reasons. In these types of cases we may avail ourselves of a process generically known as Alternative Dispute Resolution, or ADR. This process includes two distinct but somewhat related procedures, arbitration and mediation. There are some similarities, but crucial differences as well.
An arbitration is a mini-trial, but it is not held in court before a sitting Judge. Instead, it is held before an arbitrator, either directly hired by us, or by an ADR company. The parties have to agree on the arbitrator, who is either a retired Judge, or an attorney knowledgeable in the personal injury field. Each side will present its case, through witness testimony and document production. The attorneys have an opportunity to cross-examine adversarial witnesses, and to make opening and closing statements. The advantage to this process is that the rules of evidence are very relaxed, and that the process is generally less expensive, mostly because it is usually not necessary for either side to have expert witnesses available to testify. Most of our clients are surprised to learn that the typical medical expert – the doctor who treated the client for the injury at issue – will typically charge between $7,500 and $12,000 to appear in court to testify.
There are different types of arbitrations; sometimes the parties will enter into a “high-low” agreement, where the plaintiff is guaranteed a number (the low number) and where the insurance company will not have to pay an amount in excess of the high number. Of course, we discuss this arrangement with the client well before the arbitration begins, and do not go forward until the client agrees to the arrangement.
Another type of Alternative Dispute Resolution is a mediation; this is simply an out-of-court settlement conference, again before a retired Judge, or possibly before an attorney in the field. The main difference between these two proceedings is that an arbitrator’s decision is binding upon the parties, whereas the mediator does not actually decide the case. Mediators are able to take the time to delve into the complexities of a case, and to persuade the parties along the road to a settlement. Since a mediation is non-binding, the mediator can only suggest and persuade; the Mediator cannot order the parties to settle at any particular number. Of course, we fully explain the mediation process to our clients and answer all questions that arise, and we never proceed with a mediation without a client’s consent.
Contact the Attorneys of Worby Vecchio Edelman, LLP
Call the White Plains accident attorneys at Worby Vecchio Edelman, and we can explain this entire process to you. Contact us first if you are involved in any type of accident. We’ll answer all of your questions, and we’ll give you our opinion on whether or not you have a meritorious case. The consultation is free, and you are under no obligation. We only get paid if we recover money on your case.