If Alternative Dispute Resolution (or “ADR”) is unsuccessful in most lawsuits, a case is set for trial. Most courts have a goal of getting cases out to trial within one year of their filing. This is very often just a “goal,” but normal personal injury cases generally see at least their first trial setting within one year. The case can be set for trial multiple times before it actually “gets out” with a courtroom assigned to it. The exact procedures and protocols for trial setting vary somewhat from county to county, but this is something your attorney can discuss with you.
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After a formal exchange of information and documents is completed in most lawsuits, a form of “alternative dispute resolution” or “ADR” is usually employed in an attempt to settle cases. Very often courts order ADR, which can include judicial arbitration, mediation, or settlement conferences before a judge or court referee. These ADR processes generally are not binding on the parties, and they can walk away from them if they are not satisfied with the results or what is being offered.
It is important to preserve evidence relating to your accident: pictures of your damaged vehicle, the scene of the accident, or your injury; the actual product that has injured you; names and addresses of persons who witnessed the accident. An attorney can help you with this evidence collection and preservation. Law enforcement personnel will typically give persons involved in an accident a accident report number, before the actual accident report has been prepared. It is important to retain this number, and to follow-up with the law enforcement agency in question to obtain a copy of the actual police report once it is completed. If you are incapacitated, have your attorney or someone else obtain a copy of the accident report. Do not be surprised if the report is not entirely accurate. There may be steps that you can take to remedy this situation. Consult your attorney about the options.
Once the pre-lawsuit stage of the personal injury claims process comes to an end, a complaint is filed in the Superior Court of the county in which the accident has occurred, or one of the defendants live. The defendant has 30 days to answer the complaint once it has been served on him or her. From that point, the parties usually engage in the “discovery process,” including answering written questions, providing documents, and making themselves and other witnesses available for depositions. Depositions are statements taken under oath, where a court reporter transcribes a person’s testimony. The discovery process in the typical personal injury case lasts six months or so.
The time-honored claim of negligence in California and United States courts may seem ambiguous to some. What does it mean “reasonable care?” What is the standard? One person’s “reasonable care” is another person’s “unreasonable care.” How is the question decided? The short answer to these questions is this is what juries do: they decide whether the person who caused an accident exercised reasonable care under the facts presented. They look at all the circumstances – for example, whether the defendant ran a red light or violated a law causing the accident, the defendant’s speed, whether the defendant was driving too fast for driving conditions, and numerous other factors – and come to an agreement whether reasonable care has or has not been exercised.
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Many people question why claims for personal injury or wrongful acts are brought. The reason is that our society has determined that certain acts are wrongful when causing injury or loss, and affected persons should be compensated or “made whole” for their injury or loss. Sometimes the law in question is passed by legislatures, such as laws against discrimination in employment or housing. Other times, the law has been developed by judges over hundreds of years, and has its roots in English common law. An example of this latter type of law is the law of negligence: that a person who has caused an accident did not exercise reasonable care under the circumstances to avoid injury to a third party.
We are very fortunate in the United States, and in California in particular, to have ready access to the courts. Here, juries of average citizens decide disputes, and not a judge appointed by a particular political party, or an arbitrator paid for many times over by a large insurance company. Many people believe that the United States has the finest legal system in the world. There are very few other places where the average citizen can sue the most powerful companies and people around, including even the United States government, win if the cause is just. This is one of the truly great things about this country, and something very much worth preserving.
Waiting for Injuries to Stabilize Before Making Claim
In another phase of the pre-lawsuit period of most personal injury claims, the person’s injuries typically have stabilized or reached a point of being “permanent and stationary.” It is at this time that an assessment of the extent of one’s damages may be made, since the amount of medical expenses, wage loss, and pain and suffering usually are ascertainable. It is for the same reason that a claim for settlement on the insurance company of the person who caused the injury may be made with a reasonable degree of certainty. This is not always the case, however, as some injuries may be serious and take a number of years to fully manifest. This can be particularly true in brain injury cases and cases involving minors. Nevertheless, in most cases a demand can be made on an insurance company before the two years has run that one has to file a personal injury lawsuit in California. (Some exceptions to this two year period apply, so beware!).
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The Jones Act provides for substantial compensation to injured seamen. In addition to “maintenance and cure,” or the cost of their room, board, and medical care while they are getting well, the Jones Act provides for greater and more comprehensive remedies on a showing of unseaworthiness or negligence. This sort of recovery includes past and present loss of income (including fringe benefits), or wage earning capacity, past and future medical expenses, life care expenses, pain and suffering damages, and whatever other “proximate damages” or other losses that might be caused by the accident in question.
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The federal Merchant Marine Act, otherwise known as the “Jones Act,” represents the primary basis for claims of seamen, fishermen, and similar workers for workplace injuries. This body of law is found at Title 46 of the United States Code, starting at section 30104. The Jones Act allows injured seaman, called “sailors” under the Act, to make claims and collect from their employers for the negligence of a ship owner, captain, or fellow members of the crew. It does this by, in substantial measure, extending the worker’s compensation coverage and law applicable to railroad workers (the Federal Employers Liability Act), to seaman.
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