Learn About the Law

Learn about the law is a resource guide offered by Free Legal Shield.  To learn about the law is half the battle in choosing a lawyer.

Ninety-five percent of all personal injury claims are resolved before trial thru negotiations between your lawyer and the insurance company. Experienced lawyers know that the best way to settle a case is to prepare it for trial. In order to do this, attorneys for both parties follow a heavily scripted process in which documents are exchanged, questions are posed, witnesses, including experts, are disclosed, depositions are conducted, and evidence is gathered to build a strong case. This process can be divided into the following categories: the filing of pleadings, the discovery process, the pretrial, conference and the trial. Your lawyer will handle this.

A. PLEADINGS

Pleadings include a variety of legal documents that state and/or allege the opinions, positions, damages, injuries or theories of law of a party to a lawsuit that are filed with the court. The most common pleadings are:

1. Complaint: A lawsuit is initiated by a lawyer when you, or petitioner, serves the initial complaint on the defendant, or respondent. A complaint sets forth the basic elements of a case including what happened and the injuries and damages incurred. It also describes the plaintiff’s allegations of why the defendant is responsible for the plaintiff’s injuries and damages.

2. Answer: The defendant’s attorney has a prescribed amount of time to respond to the plaintiff’s complain in the form of the answer. This is the document where the defendant admits, denies or alleges insufficient information to respond to each allegation of the plaintiff’s complaint.

3. Special Defenses: These are filed with the answer. Special defenses are unique to every personal injury case. The defendant may claim the plaintiff’s injuries were caused by his/her own negligence or that the plaintiff’s claim is barred by the applicable statute of limitations and are defenses to the plaintiff’s claim of action.

4. Counterclaims: If the defendant feels that s/he has a claim against the plaintiff then this claim is filed along with the answer and is known as a counterclaim.

5. Claim for Jury Trial List: This is the point at which the plaintiff acknowledges s/he is ready for trial and advises the court of this fact.

B. DISCOVERY

Typically, discovery is the process by which attorneys for both sides “discover” all of the facts, witnesses and testimony regarding the case. During the discovery process, attorneys for both parties share information about the lawsuit. This process is accomplished through written and verbal questioning as well as through the production of documents and physical examinations. In the majority of personal injury cases, the information gathered will help to convince the parties to reach some sort of out-of-court settlement instead of going through the long, drawn-out process of a trial. There are multiple ways in which attorneys gather evidence:

1. Interrogatories: Interrogatories are written questions sent from one attorney to the other party to be answered to the best of their ability. These questions are answered under oath and must be sent back within a certain amount of time.

2. Request for Production: This document is sent from one attorney to the opposing attorney requesting that documents, pictures, bills, records, reports or other forms of evidence be produced and made available to opposing counsel.

3. Requests for Admission: Parties are permitted to require the other side to admit to certain facts under oath. Requests for admission must be answered under oath within a short time period or will be deemed to be admitted by the other side. These admissions are useful to prove obvious facts so it will not be necessary at trial to introduce additional evidence to prove these already admitted facts.

4. Depositions: Along with written discovery, oral questions may be asked of the parties involved. This takes place out of court and in the form of a deposition, in which the plaintiff, the defendant, a witness, or another person involved in the case is examined and cross-examined by the opposing attorneys, under oath. Depositions allow attorneys to find out what witnesses are going to say in court and their answers can be used to refute, impeach or discredit this witness. Attorneys will often call for the disclosure of the opposing counsel’s expert witnesses so they can be deposed before the beginning of a trial.

5. Independent Medical Examination (IME): In a personal injury case, an important part of a plaintiff’s case will be the testimony of the medical professional(s) who treated him/her. It is this evidence that tells the jury what injuries the plaintiff suffered, how they were incurred, and, in the expert opinion of the medical professional, if those injuries were causally related to the accident involving the parties. The defendant’s insurance carrier will often require that the plaintiff be examined by a doctor of their choosing. This is seen as a chance to refute, discredit, or down play the injuries that the plaintiff’s treating physician indicates the plaintiff suffered and to tarnish the credibility of said physician.

C. THE PRETRIAL CONFERENCE

A pretrial conference is held in private, usually in the judge’s chambers, with the trial judge and opposing counsel. There are several different objectives that can be accomplished during one of these conferences. A status conference, for example, occurs after all pleadings have been filed and is used by the judge to manage upcoming events. For instance, the judge may set dates for further pretrial conferences or set a tentative trial schedule.

A judge may also use the pretrial process to encourage settlement of the matter by acting as an arbitrator who attempts to move both parties closer to an acceptable settlement figure. Generally speaking, a pretrial judge will not serve as the trial judge because of his/her knowledge and involvement in the settlement process. Pretrials are also a forum where the opposing counsel and judge can discuss the case and agree on undisputed facts, or stipulations or can argue disputed issues. These stipulations benefit attorneys because they no longer have to be determined in the trial and might move the case and the attorneys closer to a settlement.

D. THE TRIAL

If the parties cannot settle their case after a pretrial, a judge will set the case down for a trial date. The trial process attempts to ensure that both the plaintiff and defendant receive a fair trial.

The first step in any jury trial is to pick the jury! The selection process, known as voir dire, occurs in the courthouse sometimes before the judge and always with opposing counsel. The attorneys will advise the jury pool of the lawyers they practice with and their potential witnesses to see if anyone has had any prior knowledge or experience with any of those parties. The attorneys, after determining if there are any conflicts regarding witnesses, will then ask the jurors questions in order to ascertain whether they can serve as unbiased interpreters of the facts.

Each attorney has a number of preemptive challenges where a potential juror can be removed from a case without cause. Additionally, each attorney can seek to have a juror removed for cause, which must be decided by the judge.

Once a jury of six is selected, the trial will begin with the opening statements of each side. The attorneys for the plaintiff and defendant use these statements in order to outline their case and theories of law to the jury.

Following the opening statements, the plaintiff’s attorney will call his/her witnesses and introduce evidence. The defendant’s counsel has the opportunity to cross-examine every witness that the plaintiff calls. The plaintiff then may have a chance to conduct a re-direct, followed by the defense’s opportunity for a re-cross.

After the plaintiff calls all of his/her witnesses, counsel for the defendant may move for a directed verdict. This is where the defendant alleges that the evidence and testimony the plaintiff provided has not proved his/her case by the “preponderance of the evidence.” If the judge agrees with the defendant, then the case is decided in the defendant’s favor. Normally, though, this is not the case, and the defendant then has the opportunity to present evidence. This process is very similar to the presentation of the plaintiff’s case. After the defense rests the plaintiff has the ability to call rebuttal witnesses and present rebuttal evidence that refutes or discredits witnesses or evidence presented by the defendant.

After the parties have rested, opposing counsel give their closing arguments. Closing arguments allow the attorneys to review the evidence that was presented to refocus the jury on their version of the case. The plaintiff’s attorney gives his/her summation first, followed by the defendant’s attorney. The plaintiff’s attorney then has the opportunity to give a rebuttal closing argument after the defense’s.

Following closing arguments, the judge will provide the jury with his/her instructions for deliberation. The judge will tell the jurors to base their judgment solely on the evidence provided and the relevant laws to the case. These instructions are referred to as jury charges. Attorneys may request that specific charges be given to the jurors but the eventual decision as to what charges to utilize is left to the judge. When the jury has reached a verdict, it is announced to the court. The judge may accept, reject, or modify the verdict based on his/her interpretation of the case, at which point a judgment is entered.

It is very important to utilize the services of an experienced attorney to help the value of your case.

The above information is only a brief summary of some of the basic items which should be addressed in a personal injury case. There are a great number of other instructions which should be followed in such a case. Not knowing your rights or proceeding without the proper representation could severely prejudice your case.

Cancer Misdiagnosis

Failure To Diagnose Or Delay In Diagnosing Cancer

1. What is a failure to diagnose or delay in diagnosing cancer case?

As is the case with many different types of diseases the key to the successful treatment of cancer is early diagnosis.

In many instances, people are diagnosed with cancer only after it has been present for a long period of time and has become advanced and usually results in death.

2. What are some of the causes resulting in failure to diagnoses or delaying to diagnose cancer?

Many different types of medical mistakes can lead to a delay in diagnosing cancer. Some of those causes may result form the following:

  • A doctor fails to understand or realize the importance of the patient's complaints;
  • A doctor fails to order the proper tests and/or improperly reads the results of the tests; or
  • A doctor fails to refer the patient to a specialist in a timely manner.

3. What should I do if I suspect that a doctor has not properly diagnosed cancer?

It is extremely important to have an experienced medical malpractice attorney who has expertise in the handling and presentation of misdiagnosis cases.

An attorney should be contacted immediately if one suspects that an improper diagnosis of cancer has taken place.

4. How do I go about getting experts to help me with my case?

Your attorney will be able to suggest a team of experts that can range from private investigators to doctors to economists to help develop your case.

5. Who will pay the expenses of hiring all of these experts?

In most cases, the law firm or attorneys will advance all costs and expenses of the case as they are incurred. Once the case is concluded, they would be reimbursed for their costs out of the recovery. In some states, even if there is no recovery, the client is still responsible for the costs and expenses of the case even though the client owes no legal fees. In other states, if there is no recovery, the client will owe nothing for the costs and expenses, which will be absorbed by the law firm or attorney.

If you suspect that a doctor has not properly diagnosed cancer for you or anyone in your family, please use our online form and tell us about your case.

Products Liability

1. What is a products liability case?

Products liability cases can involve a great number of situations and circumstances. Some examples of products liability cases may include:

  • The purchaser of a new product is injured when the product malfunctions and causes an injury;
  • A child is injured by a defective or poorly designed or unsafe toy;
  • A person is injured in a diving accident where the pool does not have a sign warning users of the danger of diving into it;
  • A poorly designed infant sear comes loose and injuries an infant; or
  • A child is born with birth defects after the child's mother took prescription medication.

2. What should I do if I am injured by a defective or unsafe product?

You should save the defective or unsafe product and keep it in a safe place. It may be necessary to have an expert study and report on his or her findings regarding the defective or unsafe product.

You should also keep any and all paperwork related to the product (i.e. sales receipt, any instructions or directions and any other documentation related to the product).

3. How do I know if I have a products liability case?

Almost any serious injury or death related to the use of a defective product might justify an award of money damages from the company which is responsible for making or selling the product.

4. How do I go about getting experts to help me with my case?

It is very important to have an experienced products liability attorney who has expertise in the handling and presentation of products liability cases. Your attorney will be able to suggest a team of experts that can range from private investigators to engineers to doctors to economists to help develop your case.

5. Who will pay the expenses of hiring all of these experts?

In most cases, the law firm or attorneys will advance all costs and expenses of the case as they are incurred. Once the case is concluded, they would be reimbursed for their costs out of the recovery. In some states, even if there is no recovery, the client is still responsible for the costs and expenses of the case even though the client owes no legal fees. In other states, if there is no recovery, the client will owe nothing for the costs and expenses, which will be absorbed by the law firm or attorney.

6. What can happen if I bring a products liability case?

A products liability case brought successfully on behalf of a victim not only can produce substantial money damages, but can have the desired social effect of causing legislation to be enacted establishing standards for safer products, causing manufacturers to make their products safer or even causing them to remove unsafe products fro the market.

CLAIMS ADJUSTERS AND WHY IT IS IMPORTANT TO HIRE A LAWYER

Insurance company claims adjusters are professional negotiators who have extensive experience in dealing with claimants who are not represented by attorneys. These adjusters use an array of techniques that include intimidation, befriending you and a number of other psychological methods designed to get you to accept the least amount of money possible for your claim.

Claims adjusters know that if they can keep the injured party negotiating there is a very great chance that a favorable settlement will be obtained in favor of the insurance company. Claims adjusters know that in almost every case an injured party will not file a lawsuit on his or her own because they do not possess the required level of skill, expertise or experience and therefore the only option they feel they might have is to obtain some type of settlement from the insurance company.

In many instances, claims adjusters will dissuade and discourage injured parties from hiring a lawyer by telling them that lawyer’s fee will cost a great deal of money leading the claimant to believe why pay a lawyer to do something he can do for himself.

Studies have shown that experienced lawyers can negotiate settlements and/or obtain verdicts that are many times higher than what the injured parties can negotiate for themselves. In other words, in most cases you will make out better after paying the lawyer than you would if you did not hire a lawyer and negotiated your own settlement.

If you have a serious injury, wrongful death or medical malpractice case, you should always contact us so we can find you an experienced lawyer before dealing with the other party’s insurance company to avoid creating problems for yourself.

In addition to the above considerations, there are a great number of complicated issues that arise in a personal injury or medical malpractice case. These different legal issues are fraught with potential problems and can sometimes be the subject of a malpractice action against an attorney who improperly handles a case.

1. STATUES OF LIMITATIONS

The statute of limitation (sometimes call statutes of repose or other similar names) is the time period specified by law within which an action must be filed. If you do not file within the applicable statute of limitations period your claim would be subject to dismissal that would prevent you from pursuing the claim regardless of the merit of the case.

Statute of limitations dates vary from state to state. Some states provide that the action be filed within the applicable time period from the date of the injury while other states allow for a tolling or extension of the filing period from the date of discovery of the injury.

Certain states allow for a tolling of the statute of limitations if the person is incompetent or is a minor until the person becomes competent or reaches their majority, under certain circumstances.

2. NOTICE PROVISIONS

There are also certain notice provisions that have very short limitation periods that deal with such issues as state, local or federal governmental entities. In certain circumstances, if you do not comply with the statutory notice provisions you might be precluded from filing a lawsuit even though it was filed within the applicable statute of limitations period.

The statute of limitations in any particular case may be somewhat difficult to calculate because a claim may involve different causes of action against different defendants. Once you miscalculate when the statute has run or if you fail to properly provide statutory notice you claim may be forever barred despite the validity of the claim or the extent of your damages.

3. JOINT AND SEVERAL LIABILITY

The doctrine of joint and several liability holds that when a number of defendants who engaged in separate and independent acts of negligence that combined to cause a single injury are held to be jointly and severally liable. In other words, if one party was 1% at fault and the other parties were 99% at fault, the party who was 1% at fault could be responsible for 100% of the damages suffered by the injured party.

The law of joint and several liability varies from state to state and a number of states have somewhat complicated variations or modifications of this rule.

4. VICARIOUS LIABILITY

Vicarious liability deals with the ability to hold institutions or companies liable for the acts of their non-employees. For example, in some states a hospital may be liable for the negligence of a physician acknowledged to be an independent contractor while in other states hospitals may not be liable for the acts of non-employee members of the medical staff.

5. EXPERT TESTIMONY

In certain states, a plaintiff in a medical malpractice suit must file a certificate of good faith, or other similar type document, that states that a medical expert has reviewed the file and has determined that there is a good faith basis for a malpractice claim.

6. THRESHOLD LIMITS

In some states, one’s injuries must exceed a minimum threshold of seriousness before being allowed to file suit. Some states define “serious injury” as an injury that results in death, dismemberment, significant disfigurement, a fracture, permanent loss of use of a body function or other significant permanent disability.

In other states, your medical bills must exceed a certain dollar figure or you must be out of work for a certain number of days before a person can file suit.

7. DAMAGE CAPS

A growing number of states have placed artificial caps on the amount of money an injured party is able to obtain for his or her injuries. In certain states, this cap applies whether the claim is for an injury or a death.

8. COLLATERAL SOURCE RULE

In certain states, the negligent party is allowed to offer evidence of certain collateral or other payments that the injured party received which would then be used to reduce the award that the responsible party would have to pay.

9. LAST CLEAR CHANCE

This legal theory holds that if a plaintiff has the last opportunity to avoid an accident or injury and fails to do so then that party will be held solely responsible for his/her injuries regardless of the negligence of the person who caused the accident.

10. PRE-JUDGEMENT INTEREST

Certain states allow for the court or jury to provide interest on the award that is made the plaintiff. The interest rates and commencement period for the running of interest vary from state to state.

11. ASSUMPTION OF RISK

This legal doctrine provide that a plaintiff who knowingly and voluntarily exposes himself/herself to a dangerous condition or situation which results in some type of injury may not be entitled to compensation due to the fact that the plaintiff has assumed the risk and agrees to accept the consequences.

12. IMMUNITIES

A number of states provide immunities in specific cases, generally to governmental entities and their employees. Certain states provide for abbreviated notice provisions which mean that you have a much shorter period of time in which to provide a required notice to a governmental agency or employee, that must be made to a state agency or claims commissioner before a claim can be reviewed.

13. CONTRIBUTORY NEGLIGENCE

Certain states follow the doctrine of contributory negligence which states that a plaintiff is prevented from recovering for damages caused by someone else’s negligence if he or she contributed or was in any way responsible for the negligence or injury.

14. COMPARATIVE NEGLIGENCE

Certain states follow the doctrine of comparative negligence which states that a plaintiff’s damages may be reduced if the plaintiff is in any was at fault for the accident. In some states, if the plaintiff is found to be fifty percent at fault for the injury or accident then no damages will be awarded. In other states, regardless of the plaintiff’s percentage fault in the accident, the award will be reduced by the same percentage.

15. OVER TREATMENT

Claims adjusters, in many instances, allege that the injured party over treated for the injuries that he or she sustained as a result of the negligence of another. In yet other instances, the insurance adjuster will claim that excessive tests were ordered or that the injured party was over charged for treatment that he/she received.

This partial list of potentially problematic legal issues is only the tip of the iceberg as far as matters that must be investigated before proceeding with a claim are concerned. If one of these issues is overlooked or not dealt with properly, it could result in very serious negative consequences for your case not the least of which could result in the dismissal of your case without a prospect of recovering anything at any point in time.

The above information is only a brief summary of some of the basic items which should be addressed in a personal injury case. There are a great number of other instructions which should be followed in such a case. Not knowing your rights or proceeding without the proper representation could severely prejudiceyour case.

Closed Head Injury

1. What is a closed head injury?

A closed head injury refers to damage caused to the brain from an injury resulting in no visible trauma to the skull.

2. What are the causes of closed head injuries?

Motor vehicle accidents account for the majority of closed head injuries. Other examples of closed head injuries include:

  • Falls; and
  • Sports and recreational accidents.

3. What are the general symptoms of a closed head injury?

Because the types and degrees of closed head injuries are so varied, the general symptoms can be quite different. The physical symptoms can range from inability to remember, difficulty in concentrating, difficulty in understanding and processing information, loss of balance, and loss of sense of time.

4. How do I go about proving the seriousness of my closed head injury?

There are a great number of issues that must be investigated and documented regarding a closed head injury.

It is important to have proper tests done by medical experts to understand the nature and extent of your closed head injury.

It may also be helpful to employ other experts to help develop and explain how your injuries have affected you and how they will affect you for the rest of your life.

5. How do I go about getting experts to help me with my closed head injury case?

It is very important to have an experienced personal attorney who has expertise in the handling and presentation of closed head injury claims. Your attorney will be able to suggest a team of experts that can range from private investigators to psychologists to vocational rehabilitation therapists to economists to help develop your case.

4. Who will pay the expenses of hiring all of these experts?

In most cases, the law firm or attorneys will advance all costs and expenses of the case as they are incurred. Once the case is concluded, they would be reimbursed for their costs out of the recovery. In some states, even if there is no recovery, the client is still responsible for the costs and expenses of the case even though the client owes no legal fees. In other states, if there is no recovery, the client will owe nothing for the costs and expenses, which will be absorbed by the law firm or attorney.

1. What is a Slip and fall down case?

A fall down case or what is commonly referred to as a slip and fall accident occurs when a person falls through the fault or negligence of another.

2. What are some causes of Slip and fall down cases?

Fall down cases can occur as a result of a great number of situations, some of which may include:

  • A slippery surface;
  • Improper or defective flooring;
  • Objects that extend into the walking area;
  • Poor lighting;
  • Uneven surfaces; or
  • Conditions where a hazard exists and no warnings are posted.

3. Is the owner or tenant of the property liable for your injuries?

The laws of each state set forth certain principles that determine whether or not a property owner and/or tenant are liable. The status of the injured party might be important in determining liability. Was the injured party a business customer, a social guest, a letter carrier or a trespasser?

A general statement that might cover most fall down cases is that the owner or person in charge of the property must exercise reasonable care in the maintenance of their property and has a duty to warn visitors of any dangerous or defective conditions that are known or should be known by them.

4. What should I do if I am involved in a fall down incident?

It is very important to contact an experienced personal injury lawyer who has expertise in the handling and presentation of fall down cases. An experienced personal injury attorney might advise you to:

* Get the names of all of the witnesses to your fall;

* Get photographs of the fall site including the dangerous condition; and

* File a report about the fall.

An experienced personal injury attorney might also hire a private investigator to uncover and develop the supporting evidence and testimony that would be necessary to advance your claim as well as be able to suggest a team of experts that can range from private investigators to doctors to economists to help develop your case.

5. Who will pay the expenses of hiring all of these experts?

In most cases, the law firm or attorneys will advance all costs and expenses of the case as they are incurred. Once the case is concluded, they would be reimbursed for their costs out of the recovery. In some states, even if there is no recovery, the client is still responsible for the costs and expenses of the case even though the client owes no legal fees. In other states, if there is no recovery, the client will owe nothing for the costs and expenses, which will be absorbed by the law firm or attorney.

Birth defects and injuries can result from a number of different causes. Some of these injuries may occur during the period when the mother is pregnant with the child and may result from medication or toxins that the mother is exposed to prior to the birth of her child.

Sadly, sometimes an otherwise healthy child is injured during the time of delivery. This may result because an unskilled doctor is unaware of a problem and forces the child out of the birth canal by use of forceps, suction or pulling on the child's head.

Another form of birth defect and injury is what is generally described as traumatic birth injury. This situation occurs in the form of a trauma to the brain during delivery. This condition could be the result of a lack of oxygen to the child's brain during delivery.

If your child's birth defects are the result of a doctor, hospital or other health care provider's negligence, you may be entitled to significant damages.

1. What is a wrongful death case?

A wrongful death case alleges that someone's wrongful conduct results in the death of another.

A surviving dependent or beneficiary of the deceased person could start a case against the person responsible for the death of the deceased. The damages could include physical and mental suffering, loss of earnings, medical and funeral expenses.

The surviving spouse and children may also be able to pursue a wrongful death claim against the responsible party for damages that they incurred as a result of the relative's death.

2. If I have a wrongful death case what should I do?

It is extremely important to have an experienced personal attorney who has expertise in the handling and presentation of a wrongful death case.

It is critical not to do anything that might have a negative affect upon your case. An experienced attorney might advise you not to give any statements or sign any authorizations so it is important to get the advice of an experienced attorney before you do something that could have a negative impact upon your case.

3. How do I go about getting experts to help me with my wrongful death case?

An attorney experienced in wrongful death cases will be able to suggest a team of experts that can range from attorneys, to, depending upon your case, a private investigator, doctors, and economists to help develop your case.

4. Who will pay the expenses of hiring all of these experts?

In most cases, the law firm or attorneys will advance all costs and expenses of the case as they are incurred. Once the case is concluded, they would be reimbursed for their costs out of the recovery. In some states, even if there is no recovery, the client is still responsible for the costs and expenses of the case even though the client owes no legal fees. In other states, if there is no recovery, the client will owe nothing for the costs and expenses, which will be absorbed by the law firm or attorney.

 

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