Ten Questions Frequently Asked About Personal Injury Cases
Law Offices of
Pacifico M. DeCapua, Jr.
Telephone (508) 473-7240
FAX (508) 478-7981
1. How will my case be resolved?
A personal injury case may be resolved through settlement negotiations with the other parties, alternative dispute resolution services or eventually a trial with potential appeals.
If you have insurance coverage and liability is reasonably clear, the plaintiff might be better able to settle his or her case with your insurer. If there are issues that remain unresolved after settlement negotiations are undertaken, you might agree to an alternative dispute resolution program in an effort to more quickly and inexpensively resolve these issues. If these two avenues do not provide a resolution, then the matter will go to trial and perhaps appeal.
2. How long will it take to be resolved?
You can be assured (especially if new to the litigation process) that despite my best efforts, the matter will probably take longer than expected. Be reassured that your case will be handled as expeditiously as possible. It does not benefit me to have your case gather dust in my office. On the other hand, it may be wise to complete my informal discovery before sending off a demand or filing suit and to have you reach an "end result" with your medical treatment. Boston Mun. Ct. standing Order 1-88 controls the time standards for district court and provides that civil cases should be disposed of within 24 months of filing. By the end of the twelfth full month after filing, all discovery must be completed, and all discovery motions and motions pursuant to Mass.R.Civ.P. 12, 15, 19, 20 and 56 must he heard. Unless a plaintiff files a Request for Trial Marking within the tenth, eleventh or twelfth full month after filing, the case shall be dismissed without prejudice.
3. How much will it cost?
A plaintiff usually enters into a contingent fee agreement with the attorney. According to the usual terms of a contingent fee agreement, you will compensate me one-third of the funds received as a result of the settlement or trial. In addition,
regardless of the outcome, you would be liable for the attorney's reasonable expenses and disbursements (e.g., filing fees and expert witness fees). While a number of innovative fee arrangements are seemingly becoming popular (e.g., preset fees for certain tasks), attorneys representing defendants in a personal injury suit still usually provide their services on an hourly basis.
4. What will I need to do?
Both plaintiff and defendant must take an active and cooperative role in the suit.
As plaintiff, you should be prepared to provide all (and more) of the information necessary to prove your case. This may include supplying medical bills, notes and reports; providing wage and salary information; undergoing an independent medical examination; and testifying at deposition and trial, among other obligations. Keep a diary so that you can keep track of how your injuries have affected your life-but be warned that it may one day wind up in the defendant's hands. You may also have to provide some other information that you consider personal-if it is deemed relevant to prove or disprove a material fact at issue in the case.
As defendant, you must be forthcoming with all the information necessary to defend the case and to respond to the legitimate requests of the plaintiff. You may have to participate in a thorough investigation of the circumstances surrounding the accident-including sifting through voluminous files, interviewing witnesses, contacting past and present employees and making yourself available for deposition and trial. Withholding damaging evidence will hurt your chances far more than disclosing it to me.
Both parties must direct their inquiries to their attorneys and not to the other side.
5. What are my chances of success?
Rather than giving you a flat-out prediction, let's go over the pros and cons of your case. We will work together at every stage of the litigation-as the issues regarding liability and damages become clearer, we will both have a better opportunity to fairly evaluate your chances of success. Remember that if your case goes to trial, the court will bar any recovery if it determines that you were 51 percent or more responsible for your damages.
Discretion is the better part of valor in discussing with clients the possible outcome of their cases. Plaintiffs and defendants want assurances from the minute they come through the door that they are going to win their cases. No matter how clear-cut the case may seem to you, avoid providing too rosy a scenario. Not only may you set your clients up for a fall if a favorable prognosis goes sour, but you may also make yourself open to criticism.
6. If I win, what can I expect to recover?
The amount of judgments awarded depends on how strong the case for the defendant's liability is and on the nature and extent of your damages. As far as settlement goes, at some point after all the necessary discovery and legal research has been completed, we will evaluate the two issues of liability and damages and make a demand on the defendant. The offer made by the defendant will reflect his or her consideration of the same two issues. If an agreement regarding the fair evaluation of these two issues cannot be reached, the amount you may recover is left for the court to decide.
7. If I lose, what are the consequences?
According to the usual terms of a contingent fee agreement, you would be liable to me for my reasonable expenses and disbursements. These may include, among other things, expert fees, preparation of exhibits, filing fees, copying and postage. In addition, pursuant to Mass.R.Civ.P. 54(d), the prevailing party merits costs "as of course." Therefore, if you lose, you must not only pay your own costs but also those of the other side.
8. If I resolve the case and my injuries reveal themselves later to be more serious than I thought, may I go back after the defendant?
No. Once the matter is resolved, it is resolved for good. This is why it is important to take our time in evaluating your damages and to wait until you reach a medical end result before making a demand or filing suit.
9. Who is going to pay my medical bills?
If you have medical insurance, submit your medical bills to that insurer. If not, the defendant probably will not pay your medical bills without reaching a settlement of all claims. If your medical care provider has a lien on any future award received as a result of the litigation, it is your obligation to pay the medical bills from any such award or settlement. A plaintiff injured in a motor vehicle accident may receive up to $8,000 in' medical payments as a result of the personal injury protection under the applicable motor vehicle insurance policy.
10. Will the person who caused my injuries be punished?
It depends on what you mean by "punished." Generally, unless you can show that the defendant intentionally caused your injuries, it is unlikely that the defendant will face criminal charges and the resulting fines and/or incarceration. However, if by "punishment" you mean that the defendant may have to pay for your damages or increased insurance premiums, then yes, a negligent defendant will be punished.
Last modified: April 2, 2013