Personal Injury & Car Accident Legal Glossary

Accident Reconstruction is a scientific procedure by which the circumstances of a traffic collision are proven or estimated by working backwards from the resulting damage and evidence. For example, the length of skid marks, the slipperiness of a road surface, and the amount of crush damage to the involved automobiles can be used to determine, or at least approximate, the speeds and/or directions of travel of the vehicles before the collision occurred. An accident reconstructionist is a person specially trained in using these procedures to determine the collision circumstances. The reconstructionist is an expert witness, usually retained by either the plaintiff or defendant in a lawsuit, who can be of great benefit in cases where fault for a collision is in dispute. Some police agencies, such as the California Highway Patrol, have their own personnel trained in accident reconstruction who will be assigned to prepare independent reconstruction reports about particularly severe traffic collisions. Do not assume, however, that the police officer who prepared your accident report is a qualified expert; most of the time he will not be.

Personal injury attorneys who are familiar with the best accident reconstruction experts have a definite edge in resolving cases.

Insurance adjustors are employees or independent contractors of insurance companies, and are given the job of settling insurance claims for as little money as possible. (This is how insurance companies turn a profit.) Remember, even the adjustor for your own insurance company is not necessarily “on your side,” but rather is on his company’s side, and has the overall goals of settling a claim quickly and paying out as little claim money as he can.

Each insurance company involved in a particular dispute will have one or more adjustors assigned to monitor the claim. If, for example, three different vehicles are involved in a collision, and each vehicle owner/driver has insurance, a minimum of three adjustors will be involved. Frequently, other “invisible” adjustors are also present — the supervisors of the bottom level claim adjustors — who may be the people with actual authority to settle cases. If you have med pay or collision coverage on your policy, there will also be separate adjustors handling these parts of your claim. Adjustors are individuals with their own quirks, and attorneys who know adjustors well and have good working relationships with them are better able to settle their clients’ cases for optimum value.

Even after a lawsuit is filed, and the insurance company retains the services of an insurance defense attorney to represent their insured client, the adjustor is still present in the case, working with the defense attorney and retaining the authority to settle a case short of a jury award.

Many courts in California and elsewhere now encourage (or even require) people involved in lawsuits to attempt to resolve their disputes through formal methods other than court trials. These methods in general are referred to as Alternative Dispute Resolution (ADR), that is, alternative to the formal court process of a trial. In California, court ordered arbitration is mandatory in nearly all civil cases before the lawsuit can be brought to trial, so it’s not usually referred to as “alternative.” Voluntary forms of alternative dispute resolution such as mediation or agreeing to a binding arbitration are strongly encouraged by the courts and may benefit the client in a particular case.

An experienced personal injury attorney will be thoroughly familiar with all forms of alternative dispute resolution, including the format and requirements of each method and the arbitrators and mediators likely to be involved, thus giving the attorney’s clients a significant edge in resolving their claims quickly and for full value.

An arbitration is a legal hearing, less formal than a trial, in which each side in a lawsuit or dispute offers evidence and testimony to a neutral hearing officer (the arbitrator). The arbitrator is typically an experienced attorney or a retired judge. The arbitrator will render an award in favor of one side or the other in a particular amount of money — depending upon the type of arbitration, this award may or may not be a binding award. There are two types of arbitration hearings which typically apply to personal injury claims — court-ordered mandatory arbitration, in which the award is not binding (but still of critical importance in resolving a case) and binding arbitration in which the award is final. The final resolution of uninsured and underinsured motorist claims is always through a binding arbitration, and any other type of dispute may also be submitted to a binding arbitration at the discretion of the parties involved.

Experienced personal injury attorneys will have been through many, many arbitration hearings for their personal injury cases (and may indeed have acted as arbitrators themselves in other people’s claims), and will therefore benefit from their familiarity with the process when handling new cases.

Generally, all communications between an attorney and his/her client are privileged — that is, they are entirely confidential, being given special protection under the law, and no one else (particularly their opponents in a lawsuit) are entitled to gain access to them. This is referred to as the attorney-client privilege. Also, most documents produced by an attorney and his staff in regard to the client’s case are also privileged — the attorney work-product privilege.

Often times, however, a defense attorney may seek to acquire access to these documents through the discovery process. There are only very narrow and specific instances where they are entitled to do so, however, and it is the job of a personal injury attorney to know these exceptions and to zealously guard the confidentiality of the documents and the privacy of his clients.

For the purposes of personal injury cases (as opposed to divorce attorneys, probate attorneys, tax attorneys, etc.), attorneys come in two types: the plaintiffs’ personal injury attorney (PI attorney/ plaintiff’s attorney), and the insurance defense attorney (defense attorney). Personal injury attorneys are paid by their clients out of the proceeds collected on their behalf via jury verdicts, arbitration awards, and/or settlements. These fees are specified by the contingent fee agreement that the client and attorney signed when the case was begun. Insurance defense attorneys are paid by insurance companies to represent the companies’ “insureds,” the negligent persons who have insurance policies and who are being sued as the defendants in personal injury lawsuits. These defense attorneys technically represent the defendants, but are actually being paid by the defendants’ insurance company.

Other attorneys may also become temporarily involved in personal injury cases as neutral parties such as arbitrators or mediators.

An experienced personal injury attorney should be able both to add value to his/her clients’ claims and to handle efficiently the many complicated aspects of their cases. They are usually members of several professional organizations — Edward A. Smith is a member of the American Trial Lawyers Association, the California Consumer Attorneys, and the Sacramento Consumer Attorneys organizations.

Bodily Injury Coverage will cover claims made against the policy by people who were injured in accidents caused by the named insureds and/or another person who may have been driving a covered vehicle with the insured’s permission. This will generally cover all aspects of damages except for property damage which has its own separate coverage. There are frequently restrictions on who may make a claim for Bodily Injury. For example, if the injured person is a member of the insured’s household, they are frequently excluded from coverage. Also, injuries caused by intentional act, such as an assault and battery, cannot (by law) be covered by insurance in California.

One of the most difficult challenges for the private individual handling his or her own personal injury claim is to know what their claim is worth. Some people simply don’t feel comfortable in the bargaining process necessary to settle a claim, but even those people who are comfortable with it are at a great disadvantage if they have no real idea where to start bargaining from. Likewise, an attorney who is inexperienced or unfamiliar with personal injury law may not yet have developed the necessary feel for the value of a client’s case, and may not yet be familiar with the many resources available to help evaluate a claim.

Personal injury attorneys who are well-experienced in resolving personal injury claims will have developed the knowledge of how particular factors will influence the value of a claim — things such as comparative negligence issues (in which more than one person was at fault for an accident), punitive damages issues (in which the actions of a defendant, such as a drunk driver, were particularly reprehensible), and pre-existing medical conditions of the claimant which may either increase or decrease the value of their claim.

Experienced attorneys will also have access to resources, both in book form and on-line, which give them up-to-date details about the claim value of particular types of injuries. At the Law Offices of Edward A. Smith, we have an extensive library with medical and legal information for evaluating claims. We also make use of thousands of on-line sites that give us access to the very latest medical research and legal decisions that influence claim values. Some of these online sites are available for free and listed here. For other sites we pay considerable fees so that we can meet our commitment to having the best information possible for our clients.

The claimant in a personal injury case is the person(s) injured as a result of the negligence of one or more other parties. If a formal lawsuit is filed, the claimant becomes the plaintiff in the lawsuit and the negligent party becomes the defendant.

An insurance claim is made when an injured person or his/her personal injury attorney informs an insurance company (or a self-insured business or government entity) that the injured person will be seeking compensation for damages that were sustained.

The insurance claim is the formal beginning of a personal injury case. It is initiated when an injured person (or his/her attorney) contacts the negligent party’s insurance company to inform them that a claim for damages is being made against the person or company they have insured. An insurance claim may also be made with an injured person’s own insurance company for the payment of medical expenses, vehicle damage, etc., or if the negligent party is uninsured.

Every involved insurance company should be promptly notified if a claim is being made. In fact, in most instances, a person injured in a traffic accident has a duty to notify their own insurance company within a certain period of time, or the insurer may deny their subsequent claims.

It is very important when making an insurance claim to know what information must be given to an insurance company, what information need not be given, and what information should never be given. Providing more information than required by law may seriously damage the value of a personal injury claim in the long run.

The Code of Civil Procedure is the section of the California state statutes that contains most of the information about how civil lawsuits proceed. It includes information about when and how complaints are filed to begin lawsuits, when and how they must be served on defendants by a process server, how a defendant or his attorney must respond to the lawsuit, the procedures both sides may use in the discovery process, and, in general, most of the steps that must be taken as a case proceeds either to a settlement, an arbitration, or a trial.

A private individual who plans to try handling their own personal injury lawsuit must make themselves thoroughly familiar with these rules or find themselves at a very severe disadvantage. Or, if a personal injury attorney is being retained, the individual must make certain that the attorney is experienced and familiar with these rules.

Collision/Property Damage Coverage will cover damage to vehicles and their contents involved in an accident — both your vehicle and any vehicle you may have been responsible for damaging. If a person has struck your automobile in an accident, you may be able to pursue a claim for property damage under either your insurance policy or under the negligent party’s policy. If you have a deductible on your own collision coverage, then this amount can only be recovered from the negligent party or his insurance company. If the damage is paid for under your own policy, then your insurance company will seek reimbursement from the negligent party or his/her insurance company.

Comparative negligence is the rule used in California to divide responsibility when more than one party is at fault for an accident. Under California’s “pure comparative negligence” system, an injured person can still recover compensation even if they were partly to blame — their recovery is simply reduced by their percentage of fault. For instance, if a jury awards $100,000 but finds the injured person 20 percent at fault, the award is reduced to $80,000. Insurance companies often try to inflate a claimant’s share of fault to pay less, which is one of the most important reasons to have an experienced attorney evaluate how fault is being assigned in your case.

A complaint is the legal document filed with a court that formally begins a lawsuit. It will lay out in very general terms the circumstances of the incident that forms the basis of the lawsuit, and it will also describe in broad terms the nature of the damages suffered by the claimant. The complaint will specify who the parties to the case are — the plaintiff(s) and defendant(s). It is vital that these parties are specified correctly in the complaint, and any errors must be corrected quickly or the case may be seriously damaged.

When the personal injury attorney is ready to formally bring the defendant(s) into a case, the attorney will have the complaint served upon the defendant(s) by a process server. There are very specific rules and deadlines for having this done which must be observed.

Comprehensive Coverage will generally cover damage to your vehicle and its contents from causes other than traffic collisions. The specific will often vary from policy to policy, but this generally covers such things as theft, vandalism, and non-collision physical damage.

When an injured person hires a personal injury attorney to represent them in a personal injury claim or lawsuit, they both sign a contingent fee agreement. This document is essentially the employment contract for the attorney and should lay out in detail all of the terms of that employment. “Contingent fee” refers to the fact that personal injury attorneys in California are almost always hired on the basis that they will only receive a fee from the client contingent upon the client receiving money from the person(s) causing their injuries. The amount of the attorney’s fee is completely open to negotiation with the client, although certain fee agreement are regulated by law — California law limits attorney’s fees in most cases handled for children to 25% of the total sum recovered. Fees may also vary depending upon the stage at which a case is resolved — most attorneys will charge a higher percentage fee for a case that proceeds to arbitration, mediation, or trial, because the amount of work required of the attorney is much greater in such a case.

The contingent fee agreement should also lay out such details as who is responsible for the costs of the case and how any money collected for the client is to be distributed. Most personal injury attorneys will advance the case costs to the client and will be reimbursed for these costs out of the proceeds of the case. Case costs include such things as court fees, charges for acquiring copies of the client’s relevant medical records, witness fees and expert witness fees, deposition fees, et cetera.

Because of efficiencies of operation, the Law Offices of Edward A. Smith is able to offer discounted rates on personal injury cases taken in via our Web site if the client is willing to communicate with us through the case via e-mail.

This is a type of arbitration that takes place in most civil lawsuits in California as a required step before a trial occurs, because the court hopes that arbitration will help resolve lawsuits without the time and expense of a formal trial. The arbitrator’s award is generally not binding upon the parties involved in the lawsuit (either party has a period of time to reject the award — if they do not do so the award becomes binding), however an award that is favorable to one side or the other will provide important additional leverage in trying to settle a lawsuit.

It is vital to be properly prepared for an arbitration of this kind — this is one of the primary responsibilities of a personal injury attorney when the client’s case has moved into litigation.

This term refers both to the description of actual losses that a plaintiff has experienced, e.g., “the plaintiff has suffered the following damages: broken left leg, sprained left shoulder. . . .,” as well as the measure of these losses as established in monetary terms. Damages come in three categories:

• Compensatory damages which measure actual dollar-value losses for such things as medical expenses, lost income, loss of future earning capacity, etc.
• General damages, better known as “pain and suffering” damages, which include the emotional trauma from physical injuries, pain, humiliation, etc.
• Punitive damages, or exemplary damages, which are designed to punish a defendant whose behavior in causing the plaintiff’s injuries was especially egregious.

A deposition is a form of discovery in which a plaintiff, a defendant, a witness, or an expert witness with relevant information about a lawsuit is formally questioned under oath by the attorneys representing all parties in the lawsuit. The deposition is similar to the giving of oral testimony in a trial, but takes place under less formal circumstances, usually in the office of one or another of the attorneys. The testimony is transcribed into a written format by a court reporter whose costs are passed on to the attorney (and his/her client) who scheduled the deposition.

After a lawsuit is begun, all parties to the case have the right to use certain formal procedures to discover relevant evidence possessed by the other parties or by independent witnesses. These procedures include the use of depositions, interrogatories, requests for production of documents, and demands for independent medical examinations, among others. This process as a whole is referred to as “discovery” or the “discovery process,” and is regulated in California by specific sections of the Code of Civil Procedure.

An economist is a type of expert witness who may sometimes be used in cases where it is difficult to express an injured person’s future monetary losses in simple, present day dollar terms. These particular damages may include such things as lost ability to earn wages in the future (loss of future earning capacity) and/or the costs of long-term future medical care required by their injuries. An economist can take these future dollar figures and, through calculations that may involve such things as work-life expectancy data, long-term interest rate information, and other economic details, provide a present day dollar value for the losses.

Expert witnesses are individuals trained in some particular specialty, such as medicine, engineering, accident reconstruction, or economics. By virtue of this training they are qualified to render “expert opinions” or “expert testimony” regarding the facts of a case. Some expert witnesses may have had direct involvement in the personal injury case prior to the beginning of a lawsuit, such as a treating physician (who directly provided medical care to an injured person) or a police investigator at a traffic collision who is fully trained in accident reconstruction (although very few officers actually have more than minimal training in this specialty). Most expert witnesses, however, are hired by one side or the other in a personal injury case for the purpose of analyzing complex information that falls within their area of expertise.

Expert witnesses may be vital to a personal injury case’s successful conclusion, especially in cases where the facts are highly disputed or particularly complicated. As personal injury attorneys gain experience in their specialty, they will become more and more familiar with whom the most qualified and respected expert witnesses are. The experienced attorney is therefore in a much better position to determine whether hiring experts is necessary in a given case, and if so, just which experts should be retained.

During the late 1980s and early 1990s, California courts changed over to a new set of timelines for the resolution of civil lawsuits. These new rules have been generally referred to as “fast track,” and require that nearly all civil lawsuits be promptly processed through the court system. All California counties have now adopted the “fast track” rules.

Very stringent deadlines have been established for all the major stages in a civil lawsuit after the initial complaint is filed with the court. These include deadlines for having a process server deliver the complaint to the defendant(s), deadlines for the defendant(s) to respond in court, deadlines for the completion of the discovery process, deadlines for completion of arbitration and/or mediation in the case, and finally, deadlines for the trial of the lawsuit.

The negligent parties in a personal injury case may include individual persons, may include corporate or other business entities that employed negligent persons, and may also include governmental entities (cities, counties, states, etc.) that employed negligent persons. In those California cases where governmental entities are involved, special rules must be followed as described in the Government Tort Claims Act. The most important of these rules requires that a “claim for damages,” prepared in a specific manner, must be filed with the governmental entity within 180 days after the injury occurred. This is a deadline that is separate from the usual statute of limitations that must be observed for personal injury cases, and it can easily be overlooked if a claimant or an attorney is unfamiliar with the requirement of the Tort Claims Act.

The claim deadline may also be overlooked if the case has not been thoroughly and promptly investigated. For example, suppose that two vehicles collide in the middle of an intersection. It may initially be assumed that one driver was negligent, even though he insisted he had a green light to proceed. If a prompt investigation revealed, however, a number of witnesses insisting that both drivers had green lights, and if this were to lead to an examination of the signal light system that provided evidence of signal light malfunction, then the governmental entity responsible for maintaining the signal lights might be brought into the case as a negligent party. This would require the filing of a “claim for damages” with the governmental entity which could have been overlooked by a hasty and incomplete investigation.

A good attorney will thoroughly examine all the circumstances surrounding an incident so that all negligent parties, including government entities, can be included in the case.

The independent medical examination, or IME, is a form of discovery allowed by the California Code of Civil Procedure. Essentially, it provides that the defendants in a personal injury case have the right to have an injured plaintiff examined once by a doctor of the defendants’ own choosing. Supposedly, this doctor is “independent,” but as a practical matter he/she is an expert witness who has been hired by the defendants to conduct the exam and write a report that highlights medical facts favorable to the defendants and unfavorable to the injured plaintiff.

Although it is the defendants’ right to have an IME conducted, there are many limitations to an IME that a plaintiff may properly insist upon. For example, it is appropriate to limit the medical examination to those parts of the plaintiff’s body which were injured in their accident. If the personal injury attorney does not zealously guard the client’s right to privacy, an IME doctor may examine the plaintiff in ways that have absolutely nothing to do with the injuries claimed. It is also proper for a plaintiff to refuse any forms of examination that are painful or intrusive and to refuse to discuss aspects of their medical histories that are irrelevant to the injuries they have suffered.

If plaintiffs and their attorneys do not carefully guard the plaintiffs’ right of privacy by insisting that the rules for IMEs be followed exactly, then the examining doctor will happily engage in a “fishing expedition” to turn up as many embarrassing and irrelevant facts as possible.

When the negligent parties in a personal injury claim become the defendants in a lawsuit and the formal complaint is served upon them, their insurance company will secure the services of a defense attorney to represent their interests. The defense attorney is legally representing the defendant, but is actually being paid by his/her insurance company. This can occasionally produce conflicts of interest which an experienced personal injury attorney can make use of to his client’s benefit.

Also, since many insurance companies will contract with particular law firms to handle all of their insurance defense cases within a given region, the defense attorneys who work for these firms will become very familiar to experienced personal injury attorneys. This knowledge of the defense attorneys and their individual personalities and quirks will give an experienced PI attorney an important advantage in resolving cases in which they are involved.

The following insurance policy terms are defined in very broad language. The specific definition of each term can only be determined by a very precise reading of the particular insurance policy in which they are contained — the meaning of a term is rarely identical from one insurance policy to another. The terms may be further limited or expanded by the laws of the state where the policy was issued and/or the state in which an accident occurred.

The most frequent disputed term in any policy is the “insured,” that is who may be covered for a loss by the policy. This generally breaks down into two categories: the “named insureds” and all other insureds. The “named insureds” are the people in whose names the policy is actually issued — if you have an auto insurance policy issued in your name, then you are a “named insured under the policy.” Other people not named on the policy may also have coverage available under the policy. Again, only a detailed reading of the policy mixed frequently with a lot of arguing (and an occasional lawsuit) can determine who is and is not an insured.

Interrogatories are a form of discovery allowed under the California Code of Civil Procedure. They consist of written questions which one party to a lawsuit presents to another opposing party, who must answer the questions under penalty of perjury within a certain time period. Interrogatories will usually consist of a number of general information questions regarding the answering person’s name, address, employment information, educational history, etc., as well as more specific questions regarding how the injury occurred, prior medical history, current medical expenses and other monetary damages.

As with any other form of discovery, interrogatories must be responded to within a given time period and in a specific format as required by the law. Failure to promptly or correctly respond to interrogatories can result in court-imposed penalties including monetary fines and limitations upon what evidence a party may present in the lawsuit. It is equally important to provide no more information that what is precisely required by the interrogatories that have been asked and to know what types of questions may be impermissible to ask. In both these areas, the skills of an experienced personal injury attorney can greatly reduce the amount of work required of the answering person and carefully craft the responses so as to provide only the specific, relevant information required and no more.

Often a personal injury case will require more extensive investigation than can be properly provided by an attorney’s in-house staff. In such instances, the attorney will often hire a private investigator for collection of additional evidence, such as witness statements, photographs of an accident site, or background research and/or location of potential defendant. Many private investigators will also act as process servers. The costs for these investigative services will normally be advanced to the client by the personal injury attorney, to be later reimbursed as a case cost under the contingent fee agreement.

A lawsuit is a formal legal action made by one party or group of people (the plaintiff(s)) against another person or group of people (the defendant(s)) in which recovery is sought for damages allegedly caused to the plaintiff(s) by the defendant(s). The lawsuit is formally initiated with the filing of a complaint in the proper court of law.

“Lawsuit” is a term used to refer both to the specific documents filed with a court that start the process, as well as the entire process itself. “Litigation” refers specifically to the process.

Just saying that someone caused an injury isn’t enough — it has to be proven, and it has to meet the legal requirements to establish liability. This legal conclusion that someone is formally responsible for injuries suffered by another is far more complicated than just reading a traffic collision report to see who a police officer (who may have little or no training in either accident reconstruction or the legal requirements of liability) has concluded was the cause of an accident.

It may be necessary to establish liability for many different people/corporations/government entities involved directly or indirectly in an incident. For example, it might involve proof that one negligent person was driving a vehicle and was responsible for causing injuries, proof that a second person owned the vehicle and gave the first person permission to use it, proof that a third person or corporation employed the driver and that the driver was in the “course and scope” of his employment, and so on.

Establishing liability for injuries is every bit as important as establishing the value of the damages that the injured person suffered. An experienced personal injury attorney will carefully review all the facts of an incident and apply the law to those facts in order to prove the liability of all responsible parties.

A lien is a legal claim against settlement or judgment proceeds that must be paid before the injured person receives their share. In personal injury cases, liens most often come from medical providers who treated the patient on the promise of payment from the case, from health insurers (including Medicare and Medi-Cal) seeking reimbursement, or from workers’ compensation carriers. Liens are paid out of the recovery at the end of the case. Negotiating lien amounts down is an important and often overlooked part of a personal injury attorney’s job, because every dollar a lien is reduced is a dollar that stays with the client.

When a person is injured, that person’s spouse may also have a valid claim for Loss of Consortium. Loss of consortium represent many things, including the spouse’s loss of the injured person’s assistance in caring for the family home and children, as well as the additional stress and strain placed upon the marital relationship by the physical injuries that were suffered. Loss of consortium is an element of damages that should never be ignored.

Mediation is a form of alternative dispute resolution similar in many ways to arbitration in that the parties to a personal injury case come together before a neutral referee (the mediator) in an effort to resolve their dispute. Unlike arbitrations, however, mediations are entirely at the discretion of the parties, so the event can be as formal or informal as desired. And unlike arbitrators, mediators are not expected to render a decision in favor of either of the parties. Rather, the mediator’s place is to aid the opponents in negotiating with one another and coming to a mutually agreeable resolution for their dispute. A mediation can take place at any time in a personal injury case.

Many courts are now strongly recommending the use of mediations before a lawsuit may be brought to trial. It is critical to be properly prepared for a mediation because it is a prime opportunity for settlement of a lawsuit without the expense of a court trial. It is also extremely important to know what information should or should not be provided to an opponent at the time of a mediation. An experienced personal injury attorney will have been through many mediations already, and will therefore be thoroughly familiar both with the process and with the attorneys and retired judges who typically served as mediators.

When a person is injured due to the negligence of a health care professional, the injured person may be able to pursue a medical malpractice claim against the negligent person and his/her employer (such as a hospital). Medical malpractice is a sub-specialty of personal injury attorneys because this type of claim has many additional rules and requirements that are not common to other types of personal injury claims.

Medical Payments Coverage will cover a certain amount of reasonable and necessary medical expenses incurred by any person involved in an accident caused by the named insured or other driver of a covered vehicle, or any person injured on a premises covered by the policy. If you don’t have other health care coverage adequate for your injuries, then Medical Payments Coverage can help you get the prompt medical care needed for your injuries. It can also be used to pay for medical expenses for items not covered by your standard health insurance.

If you use Medical Payment Coverage under your own policy, then you should be aware that many policies try to require that some or all of the coverage provided to you must be repaid to the insurance company if you ever receive compensation from the negligent person or his/her insurer. This repayment can often be reduced or even waived, and an experienced personal injury attorney will know how to do this.

In any insurance claim or lawsuit for injuries that a person has suffered, his/her medical records are typically the single most important piece of documentary evidence. These records, showing the treating physicians’ diagnoses, prognoses, and treatments will establish what specific injuries have been sustained, will show what the long-term expectations are either for recovery from the injuries or for permanent disability, and will specify the types and costs of medical treatment that has been and will be received.

It is critically important to know which of an injured person’s medical records an opposing insurance company or party to a lawsuit is entitled to receive and which other records are irrelevant and protected by the patient-physician privilege.

An opposing insurance adjustor will usually seek to have an injured person sign a “medical records release” as soon as possible so that the insurance company can go on a “fishing expedition” through the injured person’s records to see what they might turn up in the way of potentially embarrassing (and often irrelevant) information. For this reason especially, it is important to consult with a personal injury attorney as soon as possible to determine what type of record release is or is not proper. Similarly, once a case is in litigation, a defense attorney will attempt to subpoena the medical records of every one of the plaintiff’s physicians that can be determined. Again, it is important for the personal injury attorney to carefully guard his client’s privacy by limiting these subpoenas to only those records that are relevant.

Reports that may be requested from doctors regarding an injured person’s medical conditions will be in one of three different varieties: a report requested from a treating physician, a report prepared by a doctor who has conducted an independent medical examination (IME) of the injured person, or a report prepared by an expert witness doctor hired by one side or another in a lawsuit (other than for an IME).

Any type of medical report will cost money, so it will usually only be requested in an instance where the medical evidence is particularly complicated, unclear, or disputed. For example, a report might be requested from a treating physician if the doctor’s own records aren’t completely clear on certain important points. A personal injury attorney will usually advance to his/her client the cost of any necessary medical reports as an element of the case costs.

Negligence is the failure to use the level of care that a reasonably careful person would use in the same situation. It is the legal foundation of most personal injury claims. To prove negligence, an injured person must show four things: the other party owed them a duty of care, that duty was breached, the breach caused the injury, and real damages resulted. For example, every driver owes others on the road a duty to drive attentively and obey traffic laws — a driver who runs a red light and causes a crash has acted negligently. A person or company found negligent is legally responsible for the harm their carelessness caused.

Unfortunately, a person who has sustained an injury may be prevented either permanently or for an extended period of time from returning to their normal occupation and/or specific job duties. If it is necessary for an injured person to either substantially change his/her job duties or to seek an entirely new line of work, there are professionals referred to as occupational or vocational rehabilitation specialists who can be of great help. These experts are familiar with the physical requirements of all occupations and can help find types of work for which the injured person may be best suited. These professionals are also acquainted with the types and costs of job re-training programs that are available.

Occupational rehabilitation specialists are often hired as expert witnesses by personal injury attorneys because the long-term employment prospects of a permanently injured person and the costs of re-training are often a very large portion of the monetary damages in a personal injury case.

Pain and suffering refers to the physical pain and emotional distress an injured person experiences because of an accident — separate from out-of-pocket losses like medical bills or lost wages. It includes ongoing discomfort, anxiety, sleep loss, depression, scarring, and the loss of enjoyment of activities the person could do before the injury. These are known as general damages, and there is no fixed formula for calculating them: the value depends on the severity of the injury, how long recovery takes, and how the injury changes daily life. Documenting symptoms and treatment consistently is essential to proving a fair value for pain and suffering.

Paralegals, often referred to interchangeably as “legal assistants,” handle much of the day-to-day work in a personal injury case, including preparing standard correspondence, reviewing records, summarizing deposition transcripts, and generally assisting the attorney in preparing the case for settlement demand, arbitration, and/or trial. Most states do not currently require that paralegals or legal assistants have formal training or certification, but those paralegals who are certified have additional proof of training for their work. Other paralegals rely on their long-term experience rather than certification. Either type can provide valuable aid for the experienced personal injury attorney who has learned to rely upon them.

The records that a physician has regarding his/her patients, as well as any communications between the doctor and patients have a special degree of confidentiality under the law referred to as the “patient-physician privilege.” When an injured person brings a personal injury lawsuit to recover for their damages, they waive this confidentiality, but only to a certain specific degree — only as to medical records relating legally to the injuries they have suffered. An experienced personal injury attorney will carefully guard his client’s medical confidentiality for all medical matters not properly relating to the issues of the lawsuit. This is very important, because insurance adjustors and defense attorneys will often seek access to all of an injured person’s medical histories — an inattentive person handling his or her own claim may inadvertently give access to more of their records than is necessary.

When a personal injury lawsuit is filed with a court, it will specifically name the people, corporations, business organizations, and government entities involved in the case. The person or persons who suffered injury and are seeking recovery for damages by filing the lawsuit are referred to as the “plaintiffs.” (If recovery was sought prior to the lawsuit by way of an insurance claim, these people would have been referred to as the “claimants.”) The person or persons who are alleged to have caused the injury are named in the lawsuit as “defendants.” In a personal injury case resulting from a traffic accident, for example, the defendants may include parties such as the negligent operator of a motor vehicle, the owner of the vehicle, the driver’s employer (if the driver was on-the-job), a public entity that may have responsibility for an improperly designed roadway or malfunctioning traffic signal, and so on. It is very important not to overlook any possible defendants, because if they are not brought into a lawsuit in a timely manner, the injured person’s right to recover from them may be lost forever.

That’s us!! The PI attorney is dedicated to representing clients who have suffered physical and emotional injuries resulting from the negligence (or intentional actions) of other people and/or corporations. A PI attorney is hired by an injured person when both the injured person and the attorney have signed a Contingent Fee Agreement, which states the conditions of the attorney’s employment by and representation of the client. In most cases, the PI attorney only receives payment from the client when the attorney has secured a settlement, binding arbitration award, or jury verdict for the client. This allows even clients of very modest means to hire the very best attorneys for their cases. A good personal injury attorney will be experienced in all phases of case work, and will be able to properly guide the client’s case while it is an insurance claim, and, if necessary, on through the stages of lawsuit, discovery, arbitration, mediation, and/or trial.

Certain legal documents are required to be delivered or “served” by a person specially certified to do this — a process server. In particular, a process server will be used to serve a complaint, summons, and the other paperwork that formally initiates a lawsuit on each and every defendant in the case. A process server will also often be used to serve subpoenas on witnesses who are not parties to an action, such as independent eyewitnesses. Many process servers are also investigators, and vice versa.

Since it’s so important to have these tasks accomplished quickly and accurately, experienced personal injury attorneys will be familiar with and employ process servers who are skilled at their work.

When a person is injured as the result of a defective product, they may have a product liability claim against such people and corporations as the manufacturer of the product and any or all wholesalers and retailers of the product as it moved from the manufacturer to the end user. This chain of responsibility can be very complex, and in such cases it is vitally important to identify all potential defendants as early as possible. Also, if a particular product has resulted in product liability cases in the past, thorough research can turn up a great deal of information to speed new cases to successful conclusion.

Experienced personal injury attorneys will have ready access to databases and information exchange forums regarding a wide variety of product liability data.

In addition to their physical injuries, a personal injury claimant will often also have a claim for damage that was caused to their property. Usually, this involves damage to their automobile in a traffic collision, the costs of a rental vehicle, and sometimes also involves damage to property that was in the vehicle at the time of the collision and damaged as a result.

There are usually two paths that can be followed to resolve a property damage claim. First, the client may choose to resolve the claim through their own insurance company. This is usually a faster and simpler process than the second path, which is to present the claim to the negligent driver’s insurance company, however the client may be stuck with a deductible of hundreds of dollars or more under his/her own policy. In this instance, the deductible has to be recovered from the negligent driver or his insurance company.

There are no set rules for evaluating damage to a vehicle — it’s always a good idea to get repair estimates from two or more auto repair shops, but once one or more estimates are submitted to the insurance adjustor (whether for your own insurance company or the other driver’s) it all comes down to a bargaining process with the adjustor. If you’ve done your research well, or if your personal injury attorney has done it for you, you will have a much better idea of the value of your vehicle and the damage that was caused to it. This will put you in a much better position when it comes time to settle your property damage claim.

At the Law Offices of Edward A. Smith, we usually handle the settlement of property damage claims as a courtesy to our clients — we normally charge no fees on any property damage money that we recover for our clients.

A request for production of documents is a form of discovery permitted by the California Code of Civil Procedure. It allows any party to a lawsuit to demand that another party in the case provide to them documentary, photographic, or other physical evidence relevant to the case. Both the Request for Production and the formal response to it must follow specific formats and deadlines specified in the law, or the party incorrectly making or responding to the demand may become subject to significant penalties. An experienced personal injury attorney will be fully aware of these requirements as well as which types of documents should or should not be provided. Protecting the privacy of privileged or irrelevant documents is one of the attorney’s primary duties on behalf of the client.

A “settlement” refers to the resolution of a claim or lawsuit at any stage prior to a jury verdict or a binding arbitration award. It simply means that the involved parties have decided to “settle” their dispute at some agreed upon value. This is done entirely at the discretion of the people involved, however once a settlement agreement is entered into it becomes binding upon the parties.

An experienced personal injury attorney will always have the twin goals of settling a client’s case efficiently and at a full and fair value.

The settlement demand is often the most important document ever prepared in a personal injury claim. If the case settles before a lawsuit is filed, it is usually as the result of a settlement demand that the attorney has prepared and delivered to the opposing insurance adjustor. And even if the case does not resolve after a settlement demand is prepared, the demand can often set the tone for continuing attempts at settlement as case goes forward into litigation.

When a personal injury attorney prepares a settlement demand, he or she must carefully analyze all factors that relate to liability (how and why the other parties are responsible for the injuries) and damages, including the actual injuries that were suffered, past and future medical expenses, past and future wage loss, and general damages (often referred to as pain and suffering).

There are a great many factors that can affect the value of a personal injury claim, and all of these must be carefully weighed in order to present a settlement demand that is high enough to achieve a full-value settlement for the client, but not so ridiculously high that the insurance adjustor dismisses it out of hand. Many people who attempt to resolve their own claims without knowing what the claim is worth will either present a demand that is either too low to get them what they deserve or too high to be taken seriously.

California law generally requires that a person who has suffered a personal injury must file a lawsuit within one year after the date of injury or lose forever their rights to sue for compensation. Therefore, if an injury claim has not settled within one year, a lawsuit must be filed to protect the injured person’s rights.

It is important to be aware that this one-year statute of limitations does not apply in all cases. Situations involving claims against government entities or medical malpractice claims, for example, have much shorter time limitations which must be observed. Uninsured and underinsured motorist claims have other requirements that must be followed to prevent a claimant’s loss of right to recover.

Claims involving minors as plaintiffs sometimes have a longer statute of limitations although a minor only has one year if he is bringing an uninsured or underinsured motorist claim.

When a lawsuit is filed by a plaintiff and delivered to the defendant(s) by a process server, these people can automatically require one another to respond to certain types of discovery and to appear at certain types of hearings. There may be many other people, however, who have information that is relevant to the case but who are not actually “parties” to the action (i.e., plaintiffs or defendants). These may include, for example, independent eyewitnesses to a traffic accident, treating physicians who have provided medical care to the injured person(s), and/or a police officer who may have prepared a traffic collision report. In order to compel these independent persons to appear and testify at a deposition, arbitration, or trial, or to provide copies of written documents in their possession, they must be served with a subpoena requiring them to do so.

Subrogation is an insurance company’s right to step into the shoes of its insured and recover money it paid out from the party who actually caused the loss. For example, if your own health or auto insurer pays your medical bills or repair costs after a crash caused by another driver, it may have a right to be repaid out of your settlement or judgment against that driver. Subrogation claims can significantly affect how much of a settlement an injured person actually keeps, and an experienced attorney can often negotiate these claims down so the client retains more of the recovery.

A tort is a wrongful act — other than a breach of contract — that causes harm to another person and creates legal liability. Personal injury law is a branch of tort law. Torts may be negligent (a careless driver causing a collision), intentional (an assault), or based on strict liability (a defective product that injures a consumer regardless of fault). The person harmed by a tort, the plaintiff, may bring a civil lawsuit to recover money damages from the person or company responsible. A single event can be both a crime prosecuted by the state and a tort pursued privately by the injured victim.

Every personal injury case involving a vehicle should generate an official report, but this will only happen if the traffic collision is reported to the proper authorities. In California, most traffic collisions are investigated by the California Highway Patrol, and the official CHP document summarizing the collision is called a Traffic Collision Report. If the collision occurred within the limits of a city, the local city police department will usually be the investigating agency, and most police departments use report forms very similar (or identical) to the CHP Traffic Collision Report.

Motorists in California are required by law to report any traffic accident in which they are involved if anyone sustains an injury or if any vehicle sustained more than $500 in damage. If the police are actually called to the accident scene, they will usually prepare a collision report themselves, of which the people involved in the accident are entitled to receive copies. Alternately, a motorist may go directly to a CHP or police department office and submit a report of their own, but this should be avoided because these self-reports are not as effective and don’t carry as much weight as reports prepared by police officers.

A Traffic Collision Report will summarize the statements of the people involved in the collision, summarize the statements of any witnesses to the collision, and describe many relevant facts regarding the involved people, vehicles, streets, weather conditions, etc. An experienced personal injury attorney will be able to rapidly determine the relevant facts of the collision by closely reviewing all elements in the Traffic Collision Report, by having an investigator contact all listed witnesses, by examining and comparing the location and physical details of the accident scene with the facts listed in the report, and, where necessary, by seeking correction from the investigating officer of any obvious errors that may be contained in the report.

Very few police officers have much formal training in either accident reconstruction or the legal requirements of establishing liability, so the conclusions they place in a Traffic Collision Report are not exactly written in stone — rather, their conclusions are usually only the starting point in determining liability.

A treating physician is a doctor who has actually provided medical care to an injured person, as opposed to a doctor who may be hired as an expert witness by one or another side in a lawsuit to provide technical expert opinion testimony or conduct an independent medical examination.

A treating physician provides two critical services for an injured person. First, and most importantly, the physician provides the necessary medical treatment, specialist referrals, etc., needed for the injuries suffered. Second, the physician is both an ordinary witness to relevant facts in the personal injury case (i.e., the observed symptoms and injuries) as well as being able to provide expert medical testimony within the scope of the physician’s expertise. On both counts, having a skilled physician is of prime importance in a personal injury case.

Some cases just don’t settle. For whatever reason, the opposing sides just don’t see eye-to-eye on important issues of liability and/or damages. The case has probably already gone through the settlement demand stage, the filing of a lawsuit, discovery, arbitration and/or mediation, and is now ready for the formal conclusion of the court process — a trial and a jury verdict.

There is no stage in the entire process of resolving a personal injury claim in which an individual claimant or an inexperienced attorney will be more vulnerable than at trial. The personal injury attorney must be completely familiar with the both the statewide rules and the rules of the local court that may apply to trial scheduling, jury selection, introduction of evidence, questioning of witnesses, requests for jury instructions, and so on.

California law requires that all drivers have a certain minimum amount of bodily injury liability insurance coverage when operating a motor vehicle. Unfortunately, many people either can’t afford insurance or choose not to purchase it for their vehicles. If you’re injured by a person with no insurance, what can you do? If someone can’t afford to buy insurance, then they’re unlikely to have enough income or assets to compensate you for the injuries they caused, so suing them directly may be pointless.

Well, California law also requires that whenever someone purchases automobile insurance, the insurance company must offer them Uninsured/Underinsured Motorist coverage with the policy, and this coverage can only be dropped if the person purchasing the insurance signs a special waiver. The Uninsured Motorist portion of this coverage protects the policy owner, family members residing with him/her, and occupants of his/her vehicle if they are injured by a person who has no insurance at all. The Underinsured Motorist portion provides coverage when the policy is for an amount greater than the amount of the negligent person’s insurance policy. (This is a very simplified description of the law. In fact, UM/UIM coverage often presents some very complicated situations, and it is always a good idea to seek an attorney’s advice about UM/UIM claims.)

UM/UIM claims are very different from other claims, because they are presented to an injured person’s own insurance company. These claims will often involved discovery patterned along the same rules as for personal injury lawsuits, but instead of heading toward a trial in the long run, UM/UIM claims are ultimately resolved through binding arbitration.

A verdict is the formal decision a jury (or a judge in a bench trial) reaches at the end of a trial. In a personal injury case, the verdict determines whether the defendant is liable and, if so, how much money the plaintiff is awarded in damages. In California civil trials, a verdict does not need to be unanimous — agreement of nine of twelve jurors is sufficient. After a verdict, the losing side may file post-trial motions or appeal, which is one reason many cases resolve by settlement before a jury ever returns a verdict.

Witnesses in a personal injury case can come in two different categories: ordinary witnesses to events (also referred to as percipient witnesses) and expert witnesses. Expert witnesses are medical, engineering, or other professionals who by virtue of their expertise are entitled to provide evidence in the form of “expert opinions” regarding the facts of a case.

Ordinary witnesses to events are often vital to the successful conclusion of a personal injury case. In particular, witnesses who are not associated with either the plaintiffs or defendants in a case are often viewed as neutral parties with no reason to favor one side over the other, and therefore their presumably unbiased statements can carry great weight. An experienced personal injury attorney will always have a staff employee or private investigator interview any and all neutral witnesses in a case. This must be done very carefully so that it does not later appear to be producing bias on the part of the witness. It is also vitally important to know when to have the witness’s recollections reduced to a written, signed statement, and when it is better not to have this done, because the written statements may be acquired by an opposing party through discovery.

When a person dies due to the negligence of someone else, a wrongful death claim results. The rules for wrongful death insurance claims and wrongful death lawsuits are generally the same as for claims and lawsuits resulting from non-fatal injuries, however there are at least two important factors which are different: 1) If the deceased did not die immediately, then compensation for certain damages sustained by the deceased may be pursued by his/her estate; and 2) it must be determined which of the deceased person’s surviving relatives are entitled to receive compensation by way of a wrongful death claim or lawsuit. In California, the relatives entitled to do this are specified by statute. Obviously, these situations can be further complicated by the presence of a will and/or by disputes among the surviving relatives, and a personal injury attorney will be able to help sort out these matters.