Frequently Asked Questions
- Can I handle my case myself? Do I need an attorney?
- What problems could I encounter if I attempt to settle my case on my own?
- How much is my case worth?
- How long do I have to settle my case?
- How long will it take?
- The Life of a Lawsuit
Can I handle my case myself? Do I need an attorney?
It is always best not to hire an attorney if you can negotiate a fair settlement yourself. However, you have to know what is fair for your situation. An honest attorney will tell you up front if they believe you need their services or you should try to work out the problem yourself. Discuss your concerns with the lawyer and form impressions about what you are being told. You want a lawyer that answers your questions, seems genuinely concerned about your problems, and provides realistic expectations. Negotiating a settlement on your own allows you to avoid finding a good attorney and saves on attorney fees. Decide if it makes economic sense to hire an attorney by determining how much time you will spend fighting the wrong-doer or company on your own. Even if you end up with the same amount of money by hiring an attorney as you would have without one, you avoid the frustration of settling your case on your own. I work on a contingency basis so if I do not think I can settle your claim you will know up front. This is not personal; it’s a business decision based on years of experience litigating in California.
If the amount debated is less than the jurisdictional monetary limits for Small Claims Court in your county, it is my opinion that you are better off attempting to settle your case on your own. I rarely take such cases unless a friend or former client asks me to handle it as a favor to them. Insurance companies, for example, generally have a financial interest in settling the smaller claims in order to avoid paying hourly attorney’s fees that could exceed the value of the case. However, as a case increases in value, it becomes more difficult to convince an insurance company to pay the full value of the case. Many people are surprised to learn insurance companies often put up fight, challenging seemingly valid claims. Further, insurance companies may try to settle with you at a settlement amount well below what is deserved.
What problems could I encounter if I attempt to settle my case on my own?
First, you have to determine a reasonable settlement amount. This means documenting all expenses and costs and comparing your total to any offer for settlement you receive. If you are dealing with an insurance company and the settlement amount seems low, you can try to negotiate a higher amount. However, most insurance adjustors are set a maximum settlement amount by their superiors so at some point, they will no longer be able to negotiate with you. Many individuals end up with far more money in their pocket, even after paying attorney’s fees, than they would have handling their case alone.
Even if you precisely assess the value of your case, the insurance company rarely offers the full amount in settlement if they feel the claim could not possibly go to trial. Since most non-attorneys have no idea how to evaluate a case, they do not have little bargaining leverage with the insurance company. Insurance adjusters handle hundreds of claims and are generally very experienced, thereby providing them with a substantial advantage. It takes an experienced attorney a lot of time and dedication to evaluate and settle a claim. Imagine the odds of trying to do this on your own. You may save attorney’s fees, but could also cost yourself a lot of money in recoveries. There are many ways you can lose money by handling a case yourself. You may not realize what injuries you have or the types of damages you are allowed to recover.
For cases that are not insurance related it can be much harder to attempt to negotiate settlement on an individual basis. For example, to enforce state and federal laws protecting employees against illegal actions by their employers, you will need an attorney in many situations. Non-unionized employees are relatively powerless against their employers. Some larger employers and their attorneys handle employment disputes on a daily basis. Employers have more experience and resources than you and not consulting an attorney puts you at a major disadvantage. It is nearly impossible to prevail in an employment suit without an attorney. An attorney will not only know the relevant law but also what remedies you can and should seek, as well as how to get them. Without an attorney you might not only lose the case, but you could be ordered to pay the company’s attorney’s fees.
Medical malpractice claimants also have problems when attempting to represent themselves. Normally, a claimant alleging medical malpractice must show that the provider owed a duty to them, that the provider breached that duty, that the claimant suffered and that the patient’s injury was proximately caused by the health care provider. When medical “standards” are not followed, it is also known as “med mal.” A lawyer that knows about medical problems & medical laws is needed to help a claim reach the courts in the most accurate and timely way possible. A lawyer with experience in med mal can use the appropriate avenues to find out what your legal options are.
We handle other types of cases as well, all of which are handled better by a tenured and experience professional. We have the connections, the resources, and the experience to help you get what you deserve from your injuries if you are unable to negotiate a fair settlement on your own.
How much is my case worth?
The worth of a case is based on a number of factors. You must consider past and future medical bills, past and future lost wages, pain and suffering, mental anguish, disability, scars, emotional trauma, loss of enjoyment or affection and property damage. This by no means provides a full list of all factors that build on the worth of a case and again, being able to estimate total damages takes experience and persistence.
California law provides that a person is entitled to recover all damages arising from bodily injury or property damage proximately caused by the negligent conduct of another person. You are also entitled to recover damages resulting from intentional conduct. However, insurance does not pay for damages as a result of intentional conduct, and as such, recovery would have to come from personal assets. Economic damages include things like medical bills, wage loss and loss of use of your vehicle. Non-economic damages include pain and suffering, loss of consortium and loss of enjoyment of life. Even quantifiable economic damages are often challenged and non-economic damages are even more difficult to prove. It takes many years of experience and education to develop a feel for estimating non-economic damages in a case.
How long do I have to settle my case?
California law provides various timelines within which you must file a lawsuit, depending on the type of situation. If you miss this deadline, you could lose all rights to recover damages. This deadline is known as the statute of limitations. Generally, the courts are very strict regarding the statute of limitations but there are a few exceptions where the statute of limitations is extended. For example, if you are incapacitated or the defendant is out of the state for any period of time before the statute runs. Even if you believe that the statute of limitations has expired, consult an attorney to determine if there are any exceptions to the statute of limitations, rather than assume that you are unable to pursue a claim. Don’t wait until your statute is about to expire to seek an attorney as most attorneys will not take a case at this point.
How long will it take?
How long it takes to settle a case depends on the circumstances. The more complex the case, the longer it may take to settle. Many cases are resolved in as little as 6 months but others could take years. I have successfully represented hundreds of people with a wide range of claims. Every claim is different. Feel free to contact our office for a free consultation.
The Life of a Lawsuit
General Procedural Outline of a Lawsuit:
No two cases are alike and procedures vary with the nature and complexity of the legal and evidentiary issues involved. The following is a very general outline of the stages of a civil action.
Common Stages To a Civil Lawsuit
Every case begins with the filing and service of a Summons and Complaint. The Complaint will contain one or more “causes of action” such as “Breach of Contract” or “Fraud”.
Service Of Complaint
After the Summons and Complaint have been filed with the court, they must be properly served on the defendant(s). If the defendant(s) will accept service, he/she may sign an Acknowledgment of Service.” Otherwise the documents will have to be formally served.
Response To Complaint
The Defendant(s) have 30 days from the date of service of the Summons and Complaint to serve on the Plaintiff(s) either an Answer to the Complaint or a pleading challenging the sufficiency of the the Complaint. Responses challenging the sufficiency of the Complaint include a motion called a “Demurrer” and a “Motion To Strike”
Hearing Of Challenges To Sufficiency Of Complaint (If Applicable)
If the defendant(s) decide to file a demurrer or motion to strike, these motions must be heard and ruled upon before the matter may proceed. This can take up to 2 months. If such motion is sustained and the court grants leave to amend the Complaint, a new complaint must be drafted and served and the process starts over. Sometimes a second demurrer or motion will be filed causing more delays.
Once the Complaint and Answer have been filed both parties commence “discovery” procedures by which the evidence necessary to prosecute both sides of the case. Depending on the nature and complexity of the case, one or more of the following discovery devices may be used by the parties:
Written questions which must be answered under oath.
Request For Production Of Documents
Demands for production of documents by the parties involved.
Requests For Admission
Requiring the parties to say which allegations they affirm and which they deny.
The parties may be required to appear in the opposing attorney’s office to answer questions under oath in front of a court reporter. Depositions can also be taken from 3rd parties.
Subpoena Documents From Third Party
Documents may be subpoenad from 3rd parties such as banks and employers.
Discovery Motions (If Applicable)
If a party fails or refuses to comply with discovery requests, it may be necessary for the party propounding the discovery to make a motion in court to compel responses. If the court grants the motion, further responses will be made. If those responses are still inadequate, another motion may be made and the court can sanction (fine) the resisting party. In extreme cases the court can even terminate the action in favor of the moving party.
Throughout the case the court will set a series of Case Management Conferences to be attended by attorneys for all parties. These hearings are designed to determine whether the case is ready for trial. When the court feels that a case is ready for trial, it will set the date for trial and make orders concerning completion of discovery and final preparation for trial.
Settlement negotiations may proceed throughout the trial. Often the court will require the parties to try a mediation of the issues or will set a “Mandatory Settlement Conference” (MSC) before the trial date. Settlement negotiations general become more intense as the trial date approaches.
The vast majority of cases settle before trial. However if the parties cannot settle the case, the only way to resolve the issues is by way of trial.