Frequently Asked Questions
What should I do immediately after an accident?
Answer: Call the police. One of the main functions of the police department is to accurately report an occurrence. Although there is no requirement for a police report to pursue a personal injury claim, a reported event tends to corroborate the happening and version of the accident later presented. If medical assistance is immediately required, call for emergency assistance, such as an ambulance. If you don’t think that an Ambulance is necessary, go to the emergency room or see the doctor without delay. If the condition that caused the injury (such as a premises case) involves a transitory condition, such as snow and ice, garbage and debris (conditions that have a tendency to change), please have a friend or relative take photos of the condition that caused your accident. If there are witnesses to the accident, please obtain their name, address and phone number. A statement can be later obtained from them. A non-party’s account of the occurrence can carry a significant weight when it comes to factual discrepancies between the parties of the case, and their corroboration of the occurrence can mean the difference between winning and losing a case.
Obviously witnesses are helpful to a case, but they are not a required element in order to have a viable case. Many accidents happen and are not witnessed. Your testimony given at a later time of the facts of the occurrence is evidence.
Lastly, contact an attorney in order to obtain fact specific advice that specifically applies to your type of accident and situation. There are many short deadlines involved in personal injury matters. For example, in motor vehicle accidents, there is a 30 day deadline in which to file for No-Fault benefits (see section on Motor Vehicle Accidents). Cases against municipal entities have Notice of Claim requirements that depending upon the municipal entity can be as short as 60 days from the date of occurrence. Filing deadlines aside, investigation by a professional, in terms of photographs, witness statements, expert evaluations (such as an engineer) close in time to the accident when the condition is as it was at the time of the occurrence, can also mean the difference in proper presentation of a personal injury matter. The plaintiff in a case does have the burden of proof in proving the elements required, and it is important that a proactive approach is taken early in time.
How is my case valued?
Answer: One thing is for sure – placing a value on a person’s injury is extremely difficult. For this reason alone there are more personal injury cases in our courts’ Trial Assignment Parts than any other type of Civil matter.
However, there are three basic factors that are taken into account in the attempt to place value on the case. The first is liability, the second is damages, and the third is ability to pay.
Liability is the extent that someone other than the injured person is at fault for the injury (either by fact or law). In negligence cases, New York recognizes a pure comparative fault scenario. In other words, if there is a question of degree of fault, the trier of fact after being instructed by the Judge as to the law, is asked to make the assessment of fault based upon relative degree – adding up to 100%. For example, if the plaintiff is found to be 25% at fault and the defendant found to be 75% at fault, then the plaintiff will only recover 75% of the total damages. Generally, a defense usually makes a claim of comparative fault; but there are many cases where as a matter of law none exists. However, there are also many cases where comparative fault is a significant issue, but given the extent of damages it still may be well worth proceeding.
The second factor, extent of damages, in a personal injury case standing alone is very difficult to value. There are many losses sustained in injury cases where no amount of money can justly compensate. However, our Civil Justice System has no means other than monetary compensation. The law generally recognizes different categories of damages. The first is pain and suffering and loss of enjoyment of life since the happening of the injury to the time of trial or settlement (this is commonly referred to past pain and suffering). The second category is loss of earnings since the happening of injury to the time of trial or settlement (this is commonly referred to past loss of earnings). The third category is future pain and suffering and loss of enjoyment of life, to the extent that there is a finding of permanence – this can be a projected figure based upon
life expectancy tables. The fourth is future loss of earnings, to the extent that the person is not working or is earning less or is unable to continue in an expected career path as a result of the injuries sustained at the time of trial or settlement. There is also a category of damages for a spouse for loss of services and consortium. Lastly, is some cases, punitive damages may be recoverable, if the plaintiff can establish conduct that is “ gross, wanton, malicious, and culpable as to evince utter recklessness, or where it was act was perpetrated by evil, reprehensible, or wrongful purposes or motives .”
Who pays the costs in connection with the case?
Answer: Our firm pays the expenses incurred in the prosecution of the matter. The Rules of Professional Responsibility require that the client remain legally responsible for expenses incurred. However, our firm has yet to seek reimbursement for expenses where a recovery has not been obtained. In other words, the firm pays all the necessary expenses in the prosecution of a case handled by our office. Expenses include costs for medical records and reports, investigation expenses for a professional investigator if one is required, Court fees – such as the cost of the Index Number, the Request for Judicial Intervention Fee, the Note of Issue/Jury Demand Fee. Expenses also include the fees for an expert if one is required – the fees experts and/or doctors charge at the time of trial for their time in court, and all other necessary expenses in the process of a case.
How is the legal fee paid?
Answer: Our firm, like most attorneys who represent plaintiffs in personal injury matters, work on a contingency fee basis. A standard contingency fee retainer is 33 1/3 percent (or better known as 1/3rd of the recovery) after the deduction of expenses. In other words, expenses are taken from the top of the recovery (for it would be unfair and unethical for an attorney to apply the 1/3rd legal fee to the total recovery and then deduct expenses from the client’s portion of the recovery).
Please note that a sliding scale contingency retainer agreement applies to medical malpractice cases (this type of retainer is required by legislation that limits the fee percentage as the amount of the recovery increases at certain increments – see the section on medical malpractice for a further discussion of this).
Some firms also use another form of an approved contingency fee sliding scale retainer for all types of personal injury cases. This form gives a larger fee to the attorney in the event of a recovery under $30,000.00. Our firm does not use this form of a retainer. It is our feeling that a straight one third agreement is enough of a fee and is a straight forward agreement that prevents unnecessary confusion.
How long does it take before the case is resolved?
Answer: Generally, if a case is litigated, depending upon the complexity of the matter and the number of defendants, in relatively straightforward matters it takes approximately one year from the time of commencement of the action to get in line for trial. All discovery and exchange of pleadings must be exchanged, together with depositions, and physical examinations, before the matter can be placed in line for trial. Once the case is in line for trial, depending upon the County of where it is venued, there is an additional wait of seven months to a year and a half (this time estimate generally applies to the five boroughs of New York City). Other Counties may have a significantly shorter wait. This is called the trial calendar wait, and is completely dependent upon the number of cases already in line for trial. As those cases are disposed of either by settlement or verdict, the cases in line move ahead.
Many cases settle before trial, and some cases are resolved even before they are put into suit. In other words, many cases are resolved in as short of a time as eight months following the loss. However, it would be a mistake to resolve a case before the true extent of the injury is understood.
If I am unable to work due to my injuries, who will pay bills?
Answer: If you are injured in the course of employment, then workers’ compensation is the primary source of payment for medical and loss of earnings. If you are not working, but involved in an automobile accident, No-Fault benefits do provide some basic coverage for a portion of loss of earnings (see automobile section in this site for a further explanation). If you have short term disability coverage through a private policy or through your employer, short term disability may provide coverage for a portion of the lost earnings. Some people have coverage for long term disability. These policies are specific to the terms of coverage. New York State Disability also provides a version of short term disability. You also may qualify for Social Security Disability.
The above mentioned are a sample of benefits that may provide some portion of coverage for the loss of earnings following an injury that prevents one from being able to work. The law suit itself would assert a claim for the complete loss of earnings. This of course does not provide a guarantee of a recovery, but is subject to proof of fault, and proven inability to work. For a further explanation of the loss of earnings damages category see the section on this page – How is my case valued?.
Will my case go to trial?
Answer: Most cases settle before trial, and many cases settle before the lawsuit is even filed (particularly automobile related matters).
Automobile related matters have more of a tendency to settle prior to trial or even before the filing of the law suit due to three reasons:
1. The defendant’s insurance company can be identified by the police report or plate number, and therefore it is not necessary to file suit to identify the carrier (on the other hand many cases, such as premises cases, require filing the lawsuit in order to determine the carrier responsible for coverage of the particular property);
2. There may be limited coverage, in which case the policy is tendered and the available assets maintained by the defendant do not provide a means of satisfying a judgment. Unfortunately, many automobile policies in New York are minimum policies i.e. $25,000.00 per individual/$50,000.00 per occurrence. For example auto cases involving a fracture with limited coverage and not enough assets tend to settle quickly. Please see the section on Supplemental Coverage in the automobile section of this website for further discussion of coverage issues;
3. On the other hand, there may be a significant question as to whether the injuries have pierced the serious injury requirements imposed by the No-Fault law (see automobile section of this site for a further discussion). The serious injury requirement only applies to actions arising from the use or operation of a motor vehicle. In cases where there is a significant question of a serious injury, many times the plaintiff is better served with a pre-suit settlement to the extent one is offered, rather than risk the potential of a dismissal by the court when the case is litigated.
Cases that do go to trial generally do so for two reasons; the first is a significant disagreement as to the potential value of the case (injury cases are very difficult to value) and second significant disagreements as to the liability of the defendant.
If my case does go to trial, what is the process of the law suit?
Answer: The first step in a case is the drafting and filing of the Summons and Complaint. The Summons and Complaint is then served on the defendant by a certified process server. The defendant then has approximately 30 days to interpose an Answer (depending upon the method of service).
Once an Answer is interposed, there is an exchange of paper discovery, including a bill of particulars, a response to demands (providing authorizations and medical reports), and discovery demands are made on the defendant. After this document exchange is completed, then a request is made to the court to have a judge assigned to the case and a request for a Preliminary Conference.
Approximately 60 days after this request, the attorneys for both the plaintiff and defendant(s) are invited to court to enter into a court order as to the scheduling of discovery. At that time, typically, depositions are scheduled to take place within 60 days of the conference date. The physical examinations of the plaintiff are conducted within 45 days of plaintiff’s deposition.
The Examination Before Trial is the next step in the process of the case. I encourage the client to take the time to meet with us on the day before the deposition to prepare for the scope of questions involved. The deposition is the portion of discovery where the attorney from the other side has the opportunity to ask questions under oath before a court reporter, regarding background of the witness, the accident, medical treatment and limitations as a result of the injuries. We as your attorney also have the opportunity to question the named defendants under oath.
After the Examination Before Trial (deposition) is completed. The next step is the physical examination.
The defendant is entitled to have a physical examination performed by a doctor of the specialty relevant to the particular injury. The right of the defendant is limited to a physical examination only, in other words, no intrusive testing is allowed, such as X-rays or MRI’s or Nerve Conduction Studies or Blood Work etc.
After the depositions of all parties have been completed, and all documents and authorizations have been exchanged, and the physical examination have been performed, i.e. when all discovery is complete, the plaintiff’s case may be certified ready for trial. The case is then placed into line with all other trial ready cases in the particular county in which the action is venued.
The line of trial ready cases, varies significantly depending upon the County in which the action is pending.
There are generally a few Pretrial Conferences for the purpose of settlement discussions. If the matter does not settle, the matter is scheduled for Jury Selection, and then upon completion of selection of a Jury, the case is assigned to a Judge for the purposes of trial.
What should I expect in term of communication between me and your firm?
Answer: Generally, most of our time is spent on working on the individual cases, and moving them forward through the process of the suit and/or negotiation discussions with the carrier. We understand that the representation in a personal injury related matter is a service business and make a point of timely returning any inquiries concerning the status of case.
If there are any questions or concerns in terms of the status of the case, please call and we will answer any and all questions. An informed client is extremely important. I welcome face to face meetings with our clients. If a client requests an appointment, we will gladly set one up at a time convenient for the client. We find that time spent in a face to face appointments can not only be helpful in terms of informing the client, but also helpful in the representation of the matter. In other words, the file and pleadings can be compared directly to our given conversation, and therefore any changes or supplements can be made.
What can I do to help with the progress of my case?
Answer: The first thing, is to keep the office informed of any change in telephone or address. The second is to keep the office informed of the name and address of any new medical providers. Also when you are finished treating with a specific medical provider, please inform us at that time, so we will then request the complete medical records.
If there are any medical reports generated by the doctor, such as a recent X-Ray Report, MRI Report or narrative report by the doctor, please request a copy as the patient and either fax/or mail a copy of the report(s) to our firm. We generally wait until you are finished with a given provider before requesting the complete medical records, otherwise a premature request may result in an incomplete file. On the other hand, any updated reports as they are generated are helpful in supplementing the claims in the case.
Please make you self available for any court ordered depositions and medical examinations. Missing these appointments can result in cancellation costs imposed by the other side, and delay the progress of your case.
Keep a note book with the names and addresses of your medical providers and the corresponding dates of treatment, and a short note as to what was done on the specific date. This can be very helpful to us to compare what our records reflect and what the medical reports in our file indicate, and therefore if we are missing any information, we will be in a position to accurately identify it and request these specific documents from the doctor.
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