Why is My Lawsuit Taking So Long?

One of the most common complaints from personal injury plaintiffs is how long it takes from the time they are injured to the time they are compensated. Most probably assume that their lawyers are dragging their feet. In some cases, that may be true. However, in the vast majority of cases, there are many unavoidable speed bumps along the way that even Atticus Finch couldn’t avoid.

Delays Before Your Lawsuit is Filed

There are several important reasons why your lawyer does not file your lawsuit immediately after you hire him. First, he needs to investigate your claim — get accident reports, witness statements, medical records, insurance information, etc. Expect at least a 30-day wait before his office starts to receive these materials. Next, he will want to wait until you’ve reached maximum medical improvement (MMI), so he can evaluate how much your lawsuit is worth. This process can take many months, during which time your lawyer will periodically get updated medical records, but not have much else to do.

When you reach MMI, your lawyer will likely want to try to settle your case with the defendant’s insurance company. He usually does this by sending them a “demand letter,” a letter that explains how their insured (the defendant) is at fault and how much you have suffered in damages. He will include supporting records, such as the accident report and your medical records (no insurer will pay without proof of your injuries). He then demands that they pay a certain amount (frequently this will be the maximum amount of insurance coverage) within 30 days or he will file a lawsuit.

Why give them 30 days? 30 days is pretty much the industry standard “reasonable amount of time” for an insurance company to review a demand for settlement. If the insurer fails to reasonably settle within that time, and later on their insured is saddled with a judgment which exceeds his policy limits, the insurer may be responsible for paying the full judgment amount under “bad faith” law. If your lawyer does not give them a reasonable amount of time to review the settlement demand, he may be screwing up your potential bad faith lawsuit against the insurance company. Trust me, it is well worth the 30-day wait to preserve a potential bad faith claim.

So why should your attorney try to settle with the insurance company before filing a lawsuit? Well, in many states, like my home state of Florida, there is a direct benefit to the plaintiff in settling a case before your lawsuit is filed — your attorney’s contingency fee will be lower. In Florida, the standard contingency fee agreement provides that a lawyer gets paid one third (33.333%) of any recovery prior to the lawsuit being filed (not to split hairs, but it is actually up to the time the defendant files an answer in which it denies liability). After the lawsuit is filed, that fee goes up to 40%. So you save over 6% if your case settles before suit is filed (over $6,000.00 on a case which settles for $100,000.00).

Obviously, you will also get paid sooner if your case settles before a lawsuit is filed. Your costs (the expenses your attorney charges in addition to attorney fees, such as court fees, deposition costs, expert witness fees) will also be lower. If you can reasonably settle your case without having to file a lawsuit, you should do so. This is why it is important for your attorney to take his time and build a strong case before filing suit. You don’t want your attorney skipping steps which might ultimately screw up your chance to settle before ever having to file a lawsuit.

Delays After Your Lawsuit is Filed

After your lawsuit is filed, the majority of delays will arise from simple scheduling issues. For example, say the defense attorney wants to depose one of your treating doctors. He will need to coordinate a time to do this which is open for him, for your attorney and your doctor (if there is more than one defense attorney involved, it will have to be coordinated with all of them). How long does it take you to get an appointment to see your doctor for a 15 minute exam? Now imagine trying to find a place in his schedule that is open for a 2 hour deposition. Often, depositions need to be scheduled months in advance to accommodate everyone involved.

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Of course, depositions are not the only things which will need to be scheduled. Any motions which need to be heard will need to be scheduled with the court. Finding a hearing date that works for the attorneys and the court will also usually result in a delay of several months.

Many courts will require that the parties go to mediation (a formal settlement conference) before they will give you a trial date. This will need to be coordinated not only among the attorneys and the mediator, but also the parties (including you) and a representative from the defendant’s insurance company. Often, mediation will be a waste of time unless the parties delay it until after a good amount of discovery is completed, including any important depositions (if you could have settled before discovery was done, you probably would have settled before the lawsuit was ever filed).

If your mediation fails to result in a settlement, the court will then give you a trial date. Think you’re near the finish line now? Not so fast. . .

Delays in Your Trial Date

The first thing you should know about how the courts work is that criminal cases always take priority over civil cases (people’s freedom being more important than their money). There is no right to a speedy trial in civil lawsuits. Expect that your trial date will be set many months, if not more than a year, from the time the court issues an order setting the trial. This date will need to be cleared with both parties’ attorneys (keeping in mind that they need to find a time when they have days, if not weeks, available at the same time).

The second thing you should know about civil courts is that they schedule multiple trials for the same time, with the same judge, knowing that most will settle before the trial date. Most times, when you get your trial date, you will not be “first” on the docket, meaning that there are other cases set for trial which take priority over yours. You may be bumped. For example, you could be told that you are set to go to trial on the week beginning 2/28/2011, but that you are “number 3” on the docket. This means that there are two cases set for trial ahead of yours for that date. Both of these cases must settle or agree to be moved for you to have your trial on that date. If one of those cases actually goes to trial, your trial gets bumped to the next available docket, which could be many months away — and you may still not be “number 1” on that docket! If the court offers your attorney a chance to be “number 1” on the docket, often this will require him accepting a trial date which is much further away than one where he can be “number 3” or “number 4.” Usually you will get to trial faster by not holding out for a “number 1” position (because the odds are so high that cases ahead of you will settle before trial).

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The third thing you should know civil courts is that they grant “continuances” all the time. A continuance is a request by one or more parties to bump the trial date down the road. There are many reasons for requesting a continuance, such as witness unavailability, illness, or the need for more discovery. Just know that if a continuance is granted in your case, it will mean several more months of waiting before your case goes to trial.

Most Delays Are Not Your Attorney’s Fault

Personal Injury lawsuits often take a long time to resolve. Most of the delays you will encounter are not your attorney’s fault. Before suit, they are mostly caused by needing to wait to see how your medical treatment goes. After suit is filed, they are mostly scheduling issues (among people who are booked months in advance). There really is nothing that can be done to speed things up in most cases.

And don’t even get me started on appeals. . .

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374 Responses to Why is My Lawsuit Taking So Long?

  1. I have three (3) cases and i have a Lawyer that had them for 1 Year and more.He kee[p telling me One Case is in Bankrutpy,One is where he keep contacting the Car Insurance Lawyer and he won’t contact him back and One case he trying to decided how to send it to the People.What should i do?

    • fl_litig8r says:

      First, what I am offering is not legal advice — I don’t know the specifics of any of these cases so it’s tough to give a clear answer. That being said, here’s my take in the order you mentioned:

      1. Bankruptcy of the defendant is a royal pain. It automatically stays your lawsuit (puts it on hold). If the defendant has liability insurance, your lawyer may be able to move to lift the stay in the bankruptcy court so he can proceed with the litigation (he may be able to do this even without insurance, but it probably wouldn’t be as likely). In bankruptcy, the trustee appointed by the bankruptcy court takes over the defendant’s power to settle litigation. If your defendant is a large corporation in bankruptcy where there are lots of lawsuits to settle (this happened to me with Winn Dixie many years ago), it could take a while for the trustee to get around to processing your case).
      2. What stage is this case in? If your lawyer is trying to settle and won’t get a call back, he may not want to just move forward with litigation because he wants to keep your costs down (depositions are expensive). He may think that there is a strong settlement possibility and doesn’t want to waste your money when it’s just a matter of getting together with the defense attorney. He could try setting an appointment for a telephone conference with the other attorney (through the other lawyer’s paralegal). Feel free to suggest that. If he’s trying to schedule discovery or a hearing, it’s usually considered unprofessional to set these up without clearing it with opposing counsel. Of course, it’s unprofessional for opposing counsel to duck his calls, and unilaterally setting a depo or hearing is a pretty sure way to get a call from the other lawyer.
      3. I’m not sure what is meant by “send it to the People.” The defendant? The defendant’s insurance company? Is he talking about sending an initial demand letter? Some states don’t require defendants to disclose their liability insurers. It may be that your lawyer is trying to figure out who insures the defendant so he knows where to send a settlement demand. If that’s not the case, and he’s just figuring out what to put in his settlement demand, it could be a problem with pre-existing conditions (seeing as you have three lawsuits, I’m just speculating). He may need to confer with your treating doctors to know what injuries can properly be attributed to this accident. Other than that, I’m not sure what would cause the delay without knowing more.

      Having a case for longer than a year is not unusual. As my article discusses, there are lots of thing the lawyer has to wait for (such as MMI) before even sending out a settlement demand, much less file a lawsuit. Believe me, it’s frequently as frustrating for the plaintiff’s attorney as it is for the plaintiff. After all, we don’t get paid until you do.

      • Raashan says:

        I have a quick question if you wouldn’t mind: My complaint has been filed naming two defendants with different insurance companies. One defendant has filed appearance and jury demand, the other has not filed appearance or anything from what I can see on the public access site. It has been over 30 days since filing the complaint and summons being issued that same day. So, my question is if the co-defendant from the separate insurance company has filed appearance, does that satisfy filing appearance both parties? Thanks for your consideration to help me answer this!

        • fl_litig8r says:

          No. Each party must enter its own appearance, so if one has not you can seek a default as to that defendant. Another defendant entering an appearance has no bearing on that.

          • Raashan says:

            Thanks! Also, you are very kind for taking time out of your life to help complete strangers. I respect that about you.

  2. nick says:

    question; if the criminal cases take priority over civil cases, can the party file a change in venue? At the time of the accident he lived in a different county but now he resided approx; 4 hours from the original county.

    • fl_litig8r says:

      Criminal cases take priority over civil cases in every venue, so unless you are trying to change venue to a place that you know has less of a criminal case backlog, it won’t do you much good. The court in the county where the defendant currently resides will have personal jurisdiction to hear the case, but if you’ve already filed in one county, a motion to change venue will be viewed with great skepticism by the judge. He may think that you’re “forum shopping”, i.e., looking for a more plaintiff-friendly judge. Because you, as the plaintiff, are the one who picked the venue to begin with, you’d really have to show good cause for changing it (for example, if most of the witnesses or treating doctors reside in the new venue). Just wanting a venue with a faster docket won’t cut it.

      If you really desperately want to change venue, you could voluntarily dismiss your first case and refile it in the new venue (as long as this is your first voluntary dismissal — a second voluntary dismissal is with prejudice, meaning you can never re-file). Of course, the defendant could then move to change back to the original venue, and if most of the witnesses are in the original venue, it will probably be granted.

      • jerome says:

        yes sir, i have three cases with a lawyer from the same accident, my question is do my attorney receive 33.333 total from my cases or 33.333 fromeach one.(the cases are myself the driver, my wife and son also in the automobile).

        • fl_litig8r says:

          For your lawyer to represent all three people, he would have to have a fee agreement with each person (if your son is a minor, a parent would sign on his behalf). So, he would be entitled to receive a fee from each case.

          When representing multiple plaintiffs from the same accident, each claim can be settled or taken to trial. If your lawyer is able to settle your case, but needs to take your wife’s or son’s to trial, would you expect him to do that for free (yes, he was already paid for your case, but what’s to stop him from dropping your wife’s and son’s cases if there’s no benefit to him from getting them a recovery)?

          • jerome says:

            Sir. thank you very much, you are a service to mankind.

          • jerome says:

            Sir, my case took nearly 10 months for issurrance adjuster to even respone to my lawyer, they finally made the first offer, my question is how long should my lawyer give adjuster to make 2 offer. I’m asking because i think my lawyer is giving adjuster way too muck time.

          • fl_litig8r says:

            Most lawyers give insurance companies 30 days from the date of the first settlement offer to respond. Sometimes we’ll extend that if there’s a good reason, but 10 months is way too long. Are you saying that it was 10 months from the date your lawyer sent out the settlement demand, or 10 months from the date of your accident? If it was 10 months from the demand, I can see why you’re upset.

            Depending on how much additional information is provided in subsequent demand letters, I’d expect a lawyer to give them anywhere from 10-30 days to respond. Of course, it could go quicker if they are at the point where they are no longer exchanging information and are just making offers back and forth.

  3. L says:

    Thanks for your service.

  4. 7 months now, and only have one letter sent to the bank . waiting to meet with them, need date. awfully long time for such little progress-I think. I may fire him today..your opinion please.
    stolen drivers license, forged withdrawl slips, all done via drive thru
    @ KEY BANK–in one month—$1,000 withdrawn each time x 20. bank refuses to show pics from drive thru…

    • fl_litig8r says:

      As an initial matter, this isn’t a personal injury case, so I claim no expertise in the area of law in which your case falls. That being said, if your lawyer has had your case 7 months and has only written one letter, it doesn’t sound like he’s pursuing your case with much zeal.

      Before firing him, I’d suggest setting up an appointment to meet with him in person to get some answers as to what he’s been doing and why things are taking so long. If you are unsatisfied with his answers after the meeting, then you’ll know what to do.

  5. maria says:

    After 2 years and 5 months just now my hospital bill was paid in full. Does this mean that the insurance has already paid my lawyer? When i checked with them they did not have any notice of the hospital being paid. Also 2 insurance being sued under 1 lawsuit to which 1 insurance has already paid the policy limit. are my lawyers suppose to give money or am i suppose to wait until both insurance pay?

    • fl_litig8r says:

      Your situation sounds odd. I’ve never heard of a liability insurer directly paying a medical provider when the plaintiff has a lawyer, especially where that lawyer had no notice of the payment being made. Was this direct payment part of a settlement agreement? Because your lawyer didn’t know the bill was paid, I assume the check did not go through his office. So, I doubt that your lawyer has been paid. Your lawyer should provide you with a written settlement distribution to sign before deducting his fees. It should list the total amount of the settlement check, the amount of attorney’s fees, an itemized listing of costs, and a listing of liens to be paid from the settlement. Unless your lawyer provided you with one of these to sign, he probably hasn’t gotten any settlement money yet.

      When you say that two insurers are being sued, I’m not sure if you mean 2 different defendants with different carriers or one defendant with both “primary” and “excess” coverage (the excess coverage is liable for any amounts which exceed the primary policy’s limits, up to the limits of excess insurance), or a defendant’s insurance and your own UM insurance.

      Under most circumstances, a plaintiff does not have to wait for both insurers to settle before getting paid, assuming that the settling insurer has paid enough to satisfy all medical liens after attorney’s fees and costs are deducted. If your medical liens exceed the amount of the first settlement (after attorney’s fees), there wouldn’t be any money to pay out to you yet and you’d have to wait until the second insurer settles.

      • Mari says:

        Thank you for your reply.
        when i stated 2 insurance i meant as in 2 different persons. It was a 3 car accident where i was hit once and then once again as i was moving my car out of the way. And i do not think the first payment was enough to cover the medical bills.

        Thanks again for your information.

  6. scottk says:

    My lawyer tells me the insurance co. wants to settle about 6 months ago and now he tells me their asking for a second doctors depo. is this normal. this whole process has been going on since september 2010 what has changed since they depos. the truckdriver that hit me?

    • fl_litig8r says:

      Unfortunately, this is normal. Plenty of things could be going on here to explain your situation. It sounds like your case involves clear liability, but a dispute as to damages (which is very common). The defense lawyer may have sent a strong signal to your lawyer that they want to settle, but now he realizes that you guys are too far apart when it comes to damages. The second doctor depo may be an attempt to answer some questions as to your damages (necessity of future treatment, cost of future treatment, etc.) which could help narrow the gap between the two parties.

      It is pretty normal for personal injury lawsuits to take over a year to settle, at least when the defendant has sufficient insurance to cover all of the plaintiff’s injuries (quick payouts by insurers often indicate that their policy limits are not high enough to cover all the damages — a situation you do not want to be in).

      Do you have a mediation scheduled? I wouldn’t be surprised if the parties have some unanswered questions they want resolved before a mediation.

      • scottk says:

        Thanks for the feedback.My lawyer says it has not got to that point yet nor abritration…The accident involved a commercial box truck that hit my work truck and damaged my knee that required surgery on my pattella and airbag burns…I was just worried that the insurance co or my lawyer was trying to pull a fast one. Thanks again

  7. concerned says:

    I need some advice on a issue with my insurer. My husband was involved in an accident whereas he hit a pedestrian with his car. Some background info: 6 am, dark, pooring down rain, pedestrian was standing in the middle of the road not moving, not at a crosswalk. Apparently the pedestrian has mental issues, hence his being out in the pooring down rain at 6 am. A witness said he does it all the time. My husband was not at fault per the accident report. Our insurance company settles for the standard $100K and told us they had language in the settlement stating the plaintiff could not file a civil suit. Now 6 months later, a request for a jury trial has been sent by the plaintiff’s lawyer. I have no clue what is going on. Can you provide any insight?

    • fl_litig8r says:

      Did you skip the part where the plaintiff filed suit? Was your husband served with a copy of the complaint? Did your husband’s insurer hire a defense attorney for him? Are you sure the settlement offer of $100k was accepted by the plaintiff?

      Assuming the plaintiff did settle with your husband’s auto insurer, the insurer would have had the plaintiff sign a release which would preclude him from suing your husband (if the lawsuit was already filed, it should have been dismissed after the settlement).

      If your husband had a defense attorney assigned to him, call that lawyer ASAP and find out what is going on. If he never had a lawyer assigned to him, call your auto insurer immediately and tell them what happened. They should hire him a lawyer to take care of this.

      This sounds extremely unusual.

      • concerned says:

        Yes, the plaintiff did file suit. Apparently, the lawyer was coming up on his statute of limitations of 2 years. We were served with a copy and also our insurance co. sent a letter stating they hired a law office on my husband’s behalf. The settlement has been verbally accepted and from what I am being told, the settlement has not been signed due to Medicare holding a lien on that settlement. Our insurance co. will not release the check until Medicare releases the lien. I will call the law office and find out what is going on for sure. Any thoughts?

        • fl_litig8r says:

          It sounds like your insurer is just being cautious about the medicare lien to avoid having to pay the same thing twice. It sounds like your insurer may be negotiating directly with Medicare, and may intend to pay Medicare directly, which is a bit unusual (at least where I practice). Where I practice, typically the settlement check is sent to the plaintiff’s lawyer for the full amount along with a release which contains language that states that the plaintiff will hold harmless and indemnify the defendant for any third party liens (meaning in your case that if Medicare doesn’t get paid by the plaintiff and it sues you or your insurer, you could sue the plaintiff as a “third-party defendant” and he would be liable to pay you for any damages awarded in the suit brought by Medicare).

          Of course, it could just be that Medicare is dragging its feet in delivering a final lien amount (they are notoriously slow), and your insurer is just awaiting confirmation that the settlement will cover the lien.

          Either way, it sounds like this has been settled and now it’s just in the “book keeping” phase of the settlement.

          Going back to your initial inquiry about the request for a jury trial, this may just be a procedural tool the plaintiff’s lawyer is using to avoid the court dismissing his case for lack of prosecution (which will often be done automatically if 1 year, give or take, goes by with nothing being filed with the court) while he waits for the settlement to wrap up. This is a common practice in Florida, where a case cannot be dismissed for failure to prosecute as long as the plaintiff filed what’s known here as a “Notice for Trial” (which asks the court to set a trial date). I can’t see the plaintiff’s lawyer actually doing any more real work on this case while a settlement is pending (especially when it’s just a lien issue causing the delay). So, I suspect that this Request for Jury Trial is nothing to worry about. Definitely confirm this with the lawyer your insurer hired, though.

  8. floridamomma says:

    What happens if the at-fault driver’s insurance limit isn’t enough to cover all of our medical expenses? Is that when our under-insured coverage kicks in? The accident (a drunk driver ran a stop sign) happened only a month and a half ago, but since then we’ve found my husband has two fractured vertabrae and 4 bulging discs…is it likely, then, that the insurance company will settle quickly? They were extremely quick to send us a check for our property damage deductible–we literally had a check from the at-fault’s insurance within 4 days of the wreck. Our attorney and our insurance company reps were absolutely shocked at the speed with which the other insurance company resolved that portion of the claim. In my mind, they are acknowledging the greivousness of their insured’s actions, leading me to hope that this will translate into a faster settlement of the personal injury claim. What do you think?

    • fl_litig8r says:

      Yes, your UM insurance pays for damages that exceed the tortfeasor’s BI coverage.

      The quick payout on the property damage claim is nice, but may not mean that the BI payout will be as fast. Often, these types of claims are handled by different insurance adjusters. The property damage adjuster may just be super efficient.

      The real determining factor in how fast the defendant’s BI insurer will pay is the insurance company’s risk of a bad faith lawsuit if they don’t pay out policy limits. If the defendant’s BI limits are grossly inadequate, you can expect the insurer to pay within 30 days of a demand being made. I hope you have enough UM coverage to make up the difference. Ironically, if you do, it may take a little longer to settle with the UM carrier than if you didn’t have adequate limits. This is because both sides have to truly figure out how much your husband’s claim is worth, as opposed to just saying “Well, it’s clearly worth more than our coverage, so pay the limits.” It may take some time before the full cost of your husband’s injuries can be determined, as well as the extent of any permanent impairment.

  9. justintime says:


    I have was in a car accident where i was rear ended back in 2009. Now my lawyers assistant keeps telling me that they are in negotiations. This has been the 3rdfollowup since the beggining of Octlast follow up at the begging of December she came back to be stating that the handling attorney and the opposincounsel were in negotiations with a follow due on 12/16. to date I have yet to hear from her. Is it normal for them to try so many negotions with no success?

    • fl_litig8r says:

      Well, technically, opposing lawyers are always “in negotiations”. If you want to get a more clear picture of what is going on, ask what the last offer was from their side vs. the last demand from your side. If they can’t give you that info, it sounds like there wasn’t much negotiating going on.

      It may be that your lawyer is working your case diligently, and the paralegal is just giving you the quickest answer to get you off the phone. Has suit been filed in your case yet? If not, and you can’t get a straight answer as to why negotiations are dragging, it’s probably time for a face-to-face meeting with your lawyer so he can explain directly to you what’s going on.

  10. tee says:

    why would the people who hit me lawyer need to see my w2s for 5 yrs an address for 10 years an people that lived with me for that time florida is where the accident happened.

    • fl_litig8r says:

      These are fairly standard discovery requests in personal injury cases. They want your tax records to see if your lost wage claim is supported (they ask for multiple years to avoid any unusual years which aren’t indicative of your normal income). If you’re not making a wage loss claim, your lawyer should object to this request based on relevance.

      They want your address information so they can investigate prior accidents and medical treatment. They want the names of people who lived with you because they are potential witnesses to how you were prior to the accident. These people would likely know of any pre-existing injuries or limitations and how active you were, in case you claim that there are things that you can’t do now that you used to be able to do.

      Discovery allows each side to ask for anything that is reasonably calculated to lead to admissible evidence. The things they request do not need to be admissible in and of themselves.

      Don’t think that they are singling you out for these requests. These are the types of things defense lawyers ask for in all personal injury cases. They may completely support your case (which the defense would also want to know before trial).

  11. Thomas says:

    Another procedural type question for you…I could ask our lawyer but didn’t want to be that annoying client that you write about. 🙂 Ok, car accident happened in October of 2010. My wife sustained most of the injuries. The defendant’s insurance company gave us an offer which stunk, so we got ourselves an attorney. After doing his thing, the insurance company made another offer (more than double the offer originally made to us). Our attorney says it’s still too low, so he filed suit. Trial date is set for July of this year. My wife was deposed last month. It appears the date is approaching to get expert witnesses lined up. Our attorney expected another offer prior to that. We are waiting to hear back from him but it appears that date came and went without another offer. How should things proceed now? Should we expect additional offers to settle prior to the trial? What about mediation? Does that happen close to the trial date?

    • fl_litig8r says:

      I am somewhat surprised that your judge gave you a trial date before requiring a mediation. That’s unheard of where I practice. It’s not necessarily a bad thing, as an impending trial puts a lot of pressure on the defense. I wouldn’t be surprised if you have a mediation arranged in the near future. The sooner the better, as both sides’ costs will rise significantly as trial approaches due to expert witness fees and deposition costs. Most mediations don’t happen until after the plaintiff’s deposition, so the fact that your wife’s deposition just occurred last month could explain why you haven’t had one yet.

      Unless your case is one that absolutely needs to be tried, expect settlement negotiations to continue up until (and maybe even during) trial. Some cases, especially those involving disputed liability or causation (they admit the existence of injuries, but deny that the accident caused them) are extremely tough to settle. I had a case once with disputed causation where the result of the trial would either be millions in damages or close to nothing, based on a disputed causation issue. The insurer decided to roll the dice at trial and lost big. Despite three mediations and settlement talks that continued into trial, the case just couldn’t settle because of the “all or nothing” issue and the huge amount of damages at stake. Hopefully, your wife’s case doesn’t have similar issues which would prevent a good settlement.

      As to what happens next, expect that most of it will be “behind the scenes” things which don’t require your wife’s attention. Your lawyer will meet with and prepare experts. He’ll get reports from the opposing side’s experts. Both sides will exchange discovery to probe expert opinions and narrow down who will be called as witnesses at trial, and what documents will be submitted into evidence. Each side will conduct depositions of experts and lay witnesses who are expected to testify at trial. Each side will file Motions in Limine, which are motions to exclude certain things from being brought up at trial. Both sides will eventually need to produce final witness and exhibit lists (if they don’t list it, it almost certainly can’t be used at trial). Each side will prepare proposed jury instruction and a verdict form, which sounds like it wouldn’t be contentious, but usually is — believe me, the wording of these forms can dictate the result of the trial.

      All unresolved motions and issues will go before the judge at the pre-trial conference, after which everyone should know exactly how the trial will play out. After that, it’s on to jury selection and trial. So, there’s really quite a bit that needs to be done between now and July.

      Now, imagine that you’re the insurance company and that you have to pay your lawyer by the hour to handle all of these things. Do you think you might want to take another stab at settlement?

      It sounds like your lawyer is doing a good job and is trying to keep your costs under control (this is why you delay incurring expert costs until absolutely necessary). I hope your wife gets some good settlement offers, and if she doesn’t, I hope your lawyer knocks it out of the park at trial.

  12. tina says:

    Hi i have a accident case which my lawyer told me its been settled down for $100,000, he wants to take 40% and he saying that the case went to litigation. how can i believe his saying the truth? the person insurance limit who was involved in a car accident was $15000 and my lawyer got the rest of the money from my own insurance. i never showed up in a court or anything like that. does my lawyer have the right to charge me 40%. what kind of a paper work should i ask him to show me before i sign and agree to his term for charging 40%?

    • fl_litig8r says:

      The 40% fee is typically triggered by the filing of the defendant’s Answer to your Complaint. In Florida, if the Defendant admits liability in its Answer and requests a trial on damages only, the fee stays at 33 1/3%. Your fee contract (which you should have a copy of) will state if your fee agreement follows this standard.

      The Complaint is the very first thing filed in a lawsuit, and the Answer to the Complaint is due within 20 days of the defendant being served with the Complaint. Therefore, it wouldn’t be surprising if the 40% fee was triggered without you ever having to go to court or even answer any discovery.

      To confirm that the 40% fee was triggered, ask to see a copy of the Complaint and the Answer. If the Answer does not admit liability (fault) for the accident, you definitely owe the 40%.

      To see if the Answer admits liability, find the numbered paragraph in your Complaint where you allege that the defendant was negligent. Look for the same numbered paragraph in the Answer. If it says “Denied,” the defendant did not admit liability. If it says “Admitted,” the defendant did admit liability, which should result in your fee staying at 33 1/3% (assuming your contract provides this).

      Your lawyer would get in serious trouble with the state bar if he tried to claim more of a fee than he was allowed to under your contract, so I doubt that he’s lying about you owing the 40%.

  13. Angie says:

    I was in car accident with two of my daughters. I have two herniated discs, one daughter seems fine, the other daughter has back problems. my attorney said we had court day end of january 2012. we went into negotiations mid January. I just got settlement package, it was not what my attorney stated on the phone. They want to settle for 70,000.00. This is a huge insurance company for a school, (School bus rear ended me). can I still go to court? I don’t think my attorney had all his ducks in a row. He was afraid because they hired an expert to say the bus couldn’t cause the injury and in docs findings I apparently have arthritis. OH another thing. I work for the school district, whose bus hit me. I have not signed anything but they are denying any liability, but in the depo the bus driver did admit liability.. what should I do?

    • fl_litig8r says:

      When you say “it was not what my attorney stated on the phone” do you mean that you did not give your attorney the authority to settle for the amount stated? If you gave him permission to “get as much as he can”, or something vague like that which didn’t specify an authorized settlement amount, you are likely stuck with it. If you told him to take no less than $100,000.00, and he took $70,000.00, there is still hope to correct this, as long as you haven’t signed the release/settlement agreement.

      Because you sued a local government agency, there is a good chance that there is a statutory cap on the amount of damages you can recover, which is often $100,000.00-$200,000.00 per person (e.g., in Florida this was recently increased to $200k from $100k). Find out from your lawyer if there is such a cap, as it may affect your analysis of whether it is worth going to trial. Also, there may be a cap on your lawyer’s attorney’s fees in such cases (again, in Florida, fees in negligence cases against state and local governments are capped at 25%, instead of the usual 33-40%).

      From what you’ve described, it sounds the school district isn’t disputing liability (who caused the accident), but they are disputing “causation” (whether the accident caused your injuries). These cases can be tricky, as they often hinge on a war between the two sides’ medical experts. Also, they are particularly tough to settle because a finding for the defense often negates a huge portion of your damages. If the other side is just alleging that you had arthritis which wasn’t caused by the accident, that’s not as bad as them arguing that your herniated discs are unrelated to the accident. Find out which it is.

      I’d really suggest having a face-to-face meeting with your lawyer so he can explain in detail his perceived problems with your case, and why he thinks you should take this settlement offer. If he thinks that you have a 50/50 chance of winning the causation argument at trial, and your damages are capped at $100,000.00 by statute, $70,000.00 may not be a bad settlement offer. You need to know a lot more details to decide whether this settlement offer sounds fair.

  14. Bill says:


    I was involved in an accident in the middle of September of 2011. The other driver was arrested for alcohol use. She crossed the line on a two lane road into my lane, I tried to pull into her lane to avoid her, but she hit my rear passenger quarter and the damage made my car a total loss. I received severe bruising of the chest and shoulder injuries that have been treated with physical therapy. After I finished PT, I dropped the records of my treatment to my lawyer. This was the day after Thanksgiving. They said to give them a call after the first of the year.

    I called them the first week of January and they said they were in the process of verifying medical records and documentation. I haven’t heard anything in over a month. I’m at wits end things just keep piling up. I’ve been working since a week after the accident, but the amount of distress i’ve had since the accident worrying about money and how i’m going to make ends meet has been taking it’s toll on me. I’m going to call tomorrow and just ask if there’s anything they need from me as far as paperwork to speed things along. After reading this, it seems normal, but the other driver was clearly at fault and I didn’t think there would be that long of a period after I dropped my records off before I heard something back.

    Any advice or suggestions would be more than welcome. Thank you.

    • fl_litig8r says:

      It’s a good idea to call tomorrow and offer your help. That’s a very non-confrontational way to give your lawyer an extra “nudge”. While liability certainly seems clear in your case, disputes over the amount of damages can be just as difficult to resolve. Cases where the defendant admitted liability go to trial all the time just to resolve the issue of damages.

      There is a silver lining to the delay in your case: it likely means that the defendant has enough insurance to fully compensate you. Cases involving clear liability and an underinsured defendant tend to settle quickly, because it’s frequently clear that the plaintiff’s damages exceed the defendant’s coverage. In those cases, the two sides never have to come to a real agreement as to the actual value of the case. They both just agree that the case is worth more than the defendant’s limits. In cases where the defendant has adequate policy limits, the hard work of coming up with a specific value of the case to which both sides can agree can slow down the settlement process. If your lawyer needs to come up with a real value for your case, it’s going to take time. Remember that your past medical treatment isn’t the only consideration. Any treatment you may need in the future will need to be nailed down before your lawyer can make a proper settlement demand. Even if it’s just occasional follow-up visits with the doctor, or pain medication, or a visit to the ortho a year from now to see if your shoulder is developing arthritis from the injury, your lawyer will want to have all bases covered.

      Your lawyer’s office could be waiting on an MMI report from your primary doctor, which usually sets out your anticipated future medical needs and any permanent limitations you may have which could affect your ability to work. There could also be delays from your health insurer or medical providers in delivering lien information. Or, it could just be that someone in his office just hasn’t gotten around to your demand letter yet. Either way, continue to be nice to them and offer your help. That’s usually enough to get your case off the back burner.

      • Bill says:

        Thank you so very much. 🙂 I wasn’t expecting a response today, but you’ve done just that. I appreciate the advice and to hear that i’m not totally boned or crazy in thinking a nudge may be in order. I’ll give them a call! Thank you again!


        • fl_litig8r says:

          You’re very welcome. If you find any articles on the site helpful, Facebook “likes” or Google “+1s” are appreciated (buttons are at the bottom of every article). They help other people find the site in search engines.

  15. wayne says:

    This is a texas case.I was rearended by a woman he policy is 300k,it happened in jan 2008 we have done mediation and was offered 5k we laughed and my attorney went in and talked to the insurance company attorney,he came back in and said there is money in that room so the mediation was canceled for another date,that date came and went. we have been set to go to trial 4 times now,2 of them I was never told about. we are set to go to trial again mar 12th 2012 is there a limit on how many times a trial and be in continuence? My attorney says we have filed a stowers demand on the insurance co. my lawyers legal assistant does not like me at all and i don’t care for her either,she sent me my trial date of mar 12th i contacted he again and asked her for the time of the trial she again sent me only the date,the 12th. I emailed my attorney and he sent her a email and asked her to get me the time of the trial she has not sent it to me. I have a friend that has been to several trial accident injury cases. I asked him it it is true that the court does not give the date of the trial and the time of the trial at the same time,He said to his knowledge they are given at the same time. My attorney says they don’t ,I can’t get my attorney to talk to me he is very blunt when I ask a question and sounds like he is taking his assistance’s side. She is outright rude to me. I told him I didn’t want her to do anything on my case but she continues to. We are now into the fifth year how much longer can this take? I have severe spinal cord injury 3 vertabra’s pressing into my spinal cord 2 at about 10 percent the third at about 75-80 percent I have no income just drawing food stamps and i cannot work and my life has been destroyed. and also should i tell my attorney i want a jury trial? my understanding in a bad faith(stowers demand) if we win we can ask for any amount we want and is it ture they have to pay my attorney’s fee and all medical bills and I get what the judgment was all to myself? I am about to the point of my days are limited here on earth. I suffer every day and cannot get medical attention. The operation I need costs over 100k and my attorney won’t help me get it nor will the insurance company.
    Any help appreciated

    • fl_litig8r says:


      Thank you for your questions. I’ll break my answer into sections for clarity:

      Is there a limit to the number of times your trial can be continued?
      Theoretically, no. In practice, however, a trial judge is much less likely to grant a motion for continuance when the case has been continued previously. Some or all of your prior “continuances” may not have been due to either side requesting them. When setting a trial date, courts typically docket several cases to go to trial on the same date and assign a priority to each case. So, if there are 5 cases set for trial on the same day and your case is #3 on the docket, you won’t go to trial unless cases #1 and #2 go away, either through settlement, a requested continuance, or any other reason which terminates the cases. If your case has run into this issue multiple times, your lawyer can often request that the judge assign you a trial date where you will be #1 on the docket. Unfortunately, this usually means taking a trial date that is much later than earlier ones where you might get #2 or #3 position. It’s a tough decision between taking a “#1 docket” trial date a year from now versus a “#3 docket date” 4 months from now. Sometimes, lawyers just get unlucky and wind up behind cases that don’t settle. You should find out from your lawyer whether your current trial date puts you in the #1 docket position. If not, you may get bumped again. If there is a case ahead of you which will only take 1 day to try, you may still go to trial if yours can be tried in 4 or less. Your case would just start on the second day of the trial week.

      Should you know the exact time to show up on the trial date?
      If your case isn’t #1 on the docket, you may not, for the reasons stated above. If you are #1, you should know by now when to show up. You should be there for jury selection (voir dire). However, the court may schedule certain pre-trial motions to be heard the morning of the first day of trial, which could delay jury selection and explain why your lawyer can’t tell you exactly when to show up yet. Trial procedures vary not only from court to court, but also from judge to judge. Some judges might not be as diligent in setting the time to show up as others.

      Should I tell my lawyer I want a jury trial?
      I cannot envision your lawyer not having asked for a jury trial. The demand for a jury trial is most often found in the Complaint, so if you have a copy of that, you can check to see if one was requested. If, for some weird reason, your lawyer hasn’t requested a jury trial by now, it’s way too late. Procedural rules set short deadlines for requesting a jury trial.

      What is the effect of the Stowers demand?
      In Texas, the Stowers demand is a formal settlement demand for an amount within policy limits that sets the groundwork for a bad faith claim against the insurer, should you ultimately obtain a judgment which exceeds limits (an “excess judgment”). As in all bad faith cases, an excess judgment does not automatically entitle you to recover the excess amount from the insurer. You would need to obtain an assignment of the bad faith case from the defendant (the insurer acted in bad faith towards him, not you) and litigate the bad faith separately if the insurer does not automatically roll over. Most of the time, if an excess judgment is obtained, the insurer won’t require a full-blown bad faith lawsuit and will try to settle the claim.

      I see nothing in Texas bad faith law that would allow the recovery of your attorneys fees as part of a typical bad faith claim. There may be another procedural tool to allow this (there is in Florida, known as a “proposal for settlement” or “offer of judgment”), but it has nothing to do with your bad faith case per se. Nor do I see any means of requiring the insurer to pay your medical bills beyond that which was awarded in the excess judgment. The bad faith claim simply allows you to make the insurer pay the full amount of the judgment you obtained at trial, regardless of the policy limits (which is still pretty good).

      What to do about the paralegal?
      I wrote an article about dealing with the paralegal assigned to your case. Unfortunately, it may be too late in your case to mend any fences with this paralegal. Rude paralegals usually keep their jobs because they make up for their rudeness with competence, kind of like Dr. House on TV. I’m not surprised that your lawyer hasn’t pulled this paralegal off of your case. It would take a huge effort to bring a new paralegal up to speed on a case this old.

      If it seems that he’s “siding with” her over you, it’s probably because pissing you off will cause him fewer problems than pissing the paralegal off (who he sees every day and relies on continuously). It’s not fair. It’s just law office politics. If she were a lousy paralegal, he probably wouldn’t hesitate to fire her. So, maybe you can take some small comfort in the fact that her rudeness may be a sign that she does a good job.

      I hope you keep your trial date and I wish you success at trial. Hopefully, you’ll get a nice fat excess judgment that the insurer will immediately pay in full. Please come back after your trial and let us know the outcome.

      • wayne says:

        Dear fl_litig8r. I want to thank you for all your help but I am now in need of more help as I told you my trial date was set for March 12 2012. I contacted my attorney’s office Friday March 9 2012 to find out if my trial was still a go. To my disappointment it has been put into continuance again,this is the 5th time. She said it has been moved to July 6th 2012. My attorney will not talk to me so I had to speak to the legal assistant that does not like me. She told me the defense attorney contact the judge and asked for a continuance again and was granted the continuance the very next day. After I spoke with the legal assistant I thought I better get her to send me this information by email to cover myself just in case my trial had not been canceled and move to another date and I didn’t show up it would be thrown out of court. I am going to send you the email that I was sent from another attorney in his firm,here it is:
        Mr. XXXX:

        Esmeralda informed me that you wished for an e-mail from an attorney handling your case regarding the continuance the Court granted of the 3/12/12 trial date. The Defendant’s counsel moved for a continuance, claiming that they had other obligations, like they did in October. Unlike the previous continuance, however, this time the Court did not allow any time for response, though we told the Court we were opposed. The Court simply granted the continuance the next day after it was filed and informed the parties a week later that they would have to agree on a trial date that was convenient for everyone. The earliest setting the Court had was July 16, 2012.

        When we received no written notice re-setting the trial to that date, Esmeralda called the coordinator this morning so that she would have a certain date to give to you, rather than telling you it had been reset and we didn’t have a date yet. The coordinator confirmed that your case was re-set to July 16, 2012.

        If you have any additional questions, please let me know.

        ****** *****

        I thought I better not send her name as it might cause me some problems.
        Is it a judges practice to give a continuance on a case without discussing it with my representative/council . And is it common practice for my council not to contact me to inform me of the continuance of my trial date as it is over 125 mile drive for me to get there and he knows I have no transportation of my own and no income coming in and I have to rely on help from a friend to get me there and use his money to supply gas to get me there. They have known about it for 2 weeks now as per what his legal assistant told me.
        Is there a statue of limitations on a case like mine. In other words do they have a time limit to settle with me.
        His legal assistant also told me if they do this again they will sanction. can you please explain what that means?
        Is there anyone I can go to to put a stop to what is going on maybe like contacting The Supreme Court or another lower court and get my case moved from this court that is allowing all these continuance’s. Or who has jurisdiction over this court because I know if I piss this judge off I will not have a chance in h*ll.
        I have lost approx. 25-30 percent use of my left arm since the last time I contacted you. I am in dire need of medical attention.
        I am not sure what is going on in this court house,,the judge and the insurance company are sleeping together or something.
        Thanks again
        If you would like to contact me to say something in private please email me hawkshaw333 at gmail dot com

        • fl_litig8r says:

          Judges have a broad amount of discretion in deciding whether to grant a continuance or not. If the grounds for the motion made it clear to the judge that he would grant it no matter what your lawyer said (e.g., if the defense attorney had a family medical emergency or another trial scheduled for the same day), I’m not surprised that he didn’t wait for your lawyer to respond before granting the motion. It’s not ideal for a judge not to allow your lawyer to possibly challenge the grounds upon which the continuance was sought, but it happens.

          You really have no recourse when a continuance is granted, as an appellate court will almost never overturn the granting of a continuance. They’d be far more inclined to overturn the denial of a continuance, especially if the moving party has shown good cause.

          Your lawyer definitely should have notified you once he received the judge’s order continuing the trial. From his e-mail, it sounds like he delayed telling you until he received the new trial date. This isn’t a great excuse for the delay, given your travel situation. He really should have told you once he knew the trial was canceled, and then contacted you again when he got the new date.

          As to the paralegal stating that they would seek sanctions if the defendant tried to continue the trial again, I imagine that your office and the court cleared the July trial date with the defense lawyer’s calendar in such a way to ensure that there would be no more work conflicts. So, if he tries to pull this stunt again your lawyer will move for sanctions based on the defense lawyer’s false representation that he would be available in July. Sanctions will vary from court to court. Sometimes they will involve money (which the defense lawyer would have to pay personally). Sometimes they will involve striking defenses or witnesses.

          Once your lawsuit is filed, the statute of limitations becomes irrelevant. There is no time limit on bringing a case to trial (though courts usually set “aspirational” goals which are not enforceable), so the defendant can try to delay the trial as many times as the judge will allow.

          I doubt that your judge is in bed with the defense. His hands were probably tied due to the grounds under which the continuance was sought. If he denied the motion, the defense may have immediately appealed, which would likely stay your case and cause the trial to be delayed anyway. The judge may have let the defense know that if they try to continue the case again for anything but a severe emergency that they would face sanctions.

          On the bright side, I’m surprised you were able to get a July trial date. That’s a lot sooner than I would have expected. Of course, you’re probably not the #1 trial on the docket, so unless the cases ahead of you settle or are otherwise disposed of, you may get bumped again regardless of what your lawyer or the defense lawyer do. For your sake, I hope the July date holds.

          • wayne says:

            So what you are saying I am less than a animal,no animal would be treated this way,if it was someone would be going to jail for animal cruelty,is there such a thing as human cruelty???? And I think I would be better off doing what they are hoping I do,END MY LIFE. I have been suffering for since Jan of 2008
            Between JUDGES and ATTORNEYS I have no rights,hey just be honest!!
            After all honesty is the best policy!!

          • fl_litig8r says:

            I don’t know how you read that into my response. I’m not saying that how continuances are granted is fair or right. I’m just telling you from my experience how they work. Believe me, I’ve been plenty infuriated over continuances and other delays which have affected my own cases. Plaintiffs and plaintiffs’ lawyers always want their cases set for trial as quickly as possible. Often, defense lawyers will take advantage of continuances when they shouldn’t. Judges are stuck with granting these continuances under suspect circumstances because there are times when these requests will be legitimate and they often can’t tell (at least not with the proof to avoid being overturned on appeal) when the defense really needs one and when they are just taking advantage of the system.

            You have rights and ultimately you will have your day in court. Don’t let the defense frustrate you into giving up. I hope you were just blowing off steam with the comment about ending your own life. If not, please talk to a friend, counselor or call the National Suicide Prevention line at 1-800-273-TALK (8255). July isn’t that far away. You’ve waited this long for your day in court. Don’t give up now. The system isn’t rigged against you. It’s just slow and inefficient. Eventually you will get your day in court.

          • wayne says:

            I have one more question. well its a few but its the last time I will bother you. Would it do me any good to contact the Attorney General’s office or the news media or human right’s activist’s or civil rights activist’s? for some reason there was no reply button on your last comment so I used this one.

          • fl_litig8r says:

            I doubt that any of them would do you much good. The AG doesn’t have the power to make any changes in the way your case is being handled or how continuances are dealt with in general. The news media and human rights groups probably wouldn’t be interested because delays like the one in your case are not all that unusual. It wouldn’t shock them in the least to find out that your case has taken over 4 years to get to trial (I’ve personally handled several cases that took longer).

            If you want to change the way continuances are handled in civil cases, your state bar association and state supreme court would need to develop and approve a change to the Rule of Civil Procedure which governs continuances. In most states, the bar association has a “rules” committee which proposes changes, which then must be approved by the state supreme court. Some changes which might help avoid situations like yours would be:

            1. Requiring counsel to certify that their calendars don’t have a conflict at the time trial dates are set.
            2. Forbidding continuances based on a scheduling conflict after this certification is made (add exceptions if: it was a good faith error discovered within 7 days of the trial setting, or it is an appellate matter or federal matter which subsequently arose and the party seeking a continuance has already sought and been denied a continuance in the other matter).
            3. If a party has been granted a prior continuance in the same matter, the court will apply heightened scrutiny to each subsequent request for a continuance, unless the non-moving party stipulates to it.

            Obviously, these are just broad brush strokes and the details would need to be worked out. Unfortunately, even if a rule change occurred, it wouldn’t happen in time to help you, just future plaintiffs.

          • wayne says:

            I just want to thank you for your patience with me. Yes I am very frustrated. These insurance companies get by with murder and they will get by with more if we the people don’t stand up and fight them along with judges and our politicians. I see this country dropping to its knees very very soon. I feel sorry for the rich when it happens. We out number them by millions. This country is doomed and it will be man against man. Maybe God will then save us all.

  16. Ismail says:

    I have a speeding traffic ticket about 38 in 25 mph zone. My driving history is clean. The court date is a month and more from today. I need to bring that date closer as possible because I want to use the documentation settlement in other issue. My question is how can that be acheived? Can a lawyer does that.

  17. Boonie says:

    General Q. My husband was in a car accident about a year ago (he was not at fault), he was driving through an intersection (just turned green), when a car coming through the opposite way, ran her red light and hit his car. We had taken him to the ER that night because of pain in his lower back. We had to pay the deductable $500 out of pocket to get the car out of the mechanics (front end was a mess but they replaced everything). The lady at fault, did not have insurance. Now the Insurance is stating because my husband had ‘football injuries’ over ten years ago in his back that it was not her fault – but he has never been to the Dr.’s after football was over. It has been about a year now and my husband has seen the p.t., docs, etc. and has done everything they requested him to do. Our Lawyer just sent over the ‘lost wage’ form but we are only getting a $6K payout (what it looks like), and my husbands medical bills are about $4K and ontop of that the lawyers fees. Is there something we are missing? What happens to the driver at fault with no insurance (in the state of CO you need valid insurance). Can we go after her for any of the expenses? Seems like she is getting off easy, or am I just not in the ‘know’ because we are not being told anything.

    • fl_litig8r says:

      While you could sue the person who hit your husband, if she didn’t have car insurance, it’s unlikely she would be able to pay any judgment you may get against her (most people who don’t have car insurance are broke). Most lawyers don’t bother suing the uninsured for this reason. They’d never get the cost of the lawsuit back, much less make any money to pay their clients or their fees.

      Did your husband have UM insurance? I assume he did, as Colorado is no longer a no-fault state and you mentioned a wage loss claim. This would be your only avenue of recourse when hit by a “judgment-proof” (broke) uninsured driver. If you have “med pay” coverage, that would pay for some of your medical bills (but not lost wages or pain and suffering).

      If your husband’s UM insurer is disputing his claim based on a pre-existing back injury, you don’t just have to accept it. If he has received no medical treatment for his football injuries in 10 years, it sounds like it might be worth litigating this issue. Even if his pre-existing condition hadn’t completely resolved, you can still recover for an aggravation to a pre-existing condition. Your husband’s doctors would need to support the relatedness of his current medical treatment and back pain to the auto accident, of course.

      How much your husband’s lawsuit is worth is an entirely different issue. Four thousand dollars in medical bills is not chump change, but it also doesn’t scream “serious injury” (i.e, permanent or requiring surgery). I would hope that your settlement would result in all of your husband’s medical bills being paid, with enough being added for wage loss and “pain and suffering” to cover your attorney’s fees and costs and still put some money in his pocket.

  18. talk to me says:

    So my lawyer says they have a check for me but it may take another 30days befor i receive it. why is this?

    • fl_litig8r says:

      First, see this article. Also, did your lawyer actually receive the check yet, or is he still waiting to get it from the insurer? 30 days is a common time for delivery of a settlement check after an agreement is reached.

      If your lawyer has the check, it must clear his trust account — which can take up to 10 business days. He must also pay any medical providers to whom you have given a “letter of protection” or who otherwise have a lien, along with your health insurer, if it paid any accident-related bills. Getting final totals from these lienholders (and trying to negotiate them down) takes time. In some cases, 30 days may not be enough to resolve all the lien issues.

  19. Nicole says:

    I was in a accident 12/11. The lady hit me from the back while I was sitting at a red light. She said her and her mother was looking in the mirror because the truck behind them was so close up on them….. And that’s when she hit me. I called the cops he told us to go over to the store. He asked the truck driver did he have anything to do with the accident or saw what happen, he sad no. This is 12/17 so traffic is heavy for Christmas. The lady said she THINKS the man hit her but NO damage was on her truck. So got the report call insurance companies then I went to the ER. Few days later her insurance company say she has damage. I call a lawyer cause the said they was not paying. So now we are at the point now where her insurance company has not responded. Whats next is that automatic payment for me?

    • fl_litig8r says:

      Well, if you were at a full stop and rear-ended, someone’s going to have to pay. Your lawyer may wind up having to sue both the driver behind you and the truck driver if it’s not clear whether the truck forced her into you. Obviously, the amount at stake depends on how badly you were injured and whether your state has no-fault insurance. For example, in Florida, a no-fault state, you would have up to $10,000.00 in PIP insurance to pay for your own injuries and wage loss, and wouldn’t recover any amounts paid by PIP from the at-fault driver. You’d still be entitled to recover for the damage to your car, and any personal injury damages not covered by PIP.

      Did either of the drivers (the lady or the trucker) get a ticket from the accident? If so, that’s most likely the party you’ll wind up recovering from. Most insurance companies don’t dispute liability when their driver is cited with the accident.

      • Nicole says:

        That is the problem there is NO info on the truck driver( Poor Police Work). And iam not sure if the lady recived a tickect or not. Even with that isn’t she/Her insuracne suppose to pay for my car damage?

        • fl_litig8r says:

          Her insurance won’t pay for the damage to your car unless you can prove that she was at fault for hitting you. If her car was hit from behind and driven into yours (and she would have been able to stop otherwise) she’s not at fault. The full accident report (often you are only given a limited report at the scene) should say whether she was ticketed. It should also indicate damage to the vehicles, with a diagram of the cars — the officer circles the areas on the pictures where the cars suffered damage. If the diagram does not indicate damage to the rear of her car, odds are she wasn’t hit from behind (at least not with sufficient force to drive her car into yours).

          If you have collision coverage, your insurer can pay for the damage to the car (minus your deductible) and would then have the right to sue her insurer to recover what it paid. Sometimes they will agree to try to recover your deductible as well.

          If your accident was fairly minor, and is mostly vehicle damage, you may not be able to find a lawyer willing to take your case and will have to handle the property damage claim one your own. Your first step should be to get the “long form” version of the accident report from the police, to see what you’re up against.

  20. christian says:

    I won a judgment 6 years ago. My attorney says that he’s awaiting on some back accounts that he sent to be frozen. How long does that take? he also is thinking of going to the sheriff to foreclose on a property. The cost is about 7 thousand. He says that he is waiting on the fronzen bank accounts before going to the sheriff. Why is he waiting? and How long do I expect to get anything from this? It’s been four years already and I have not seen a penny. I’m not sure why he is taking so long to act when the person has properties we can go after. She already sold a property and we could not get a penny out of it because the buyer accepted the properties with all the liens. This frustrated me. Any help or advise for me to understand this? thanks.

    • fl_litig8r says:

      I can only guess as to why your lawyer prefers to pursue the bank accounts over the real estate. I would think it’s because if you levy on the bank accounts, you get instant cash, instead of having to auction off seized property. Also, it may be that the real estate is so encumbered with liens (and mortgages would take priority over your judgment lien) that there would be little to nothing left over for you if they were seized and sold. It would be a lot of work for little payoff. If your county has its official records online, you can check to see what liens are filed against these properties to see how encumbered they are.

      In short, while it may take longer to get at the bank accounts, as long as they are frozen, the money’s not going anywhere and probably presents the best chance for you to have your judgment satisfied. If your lawyer’s working on a contingency fee, he has every incentive to pursue the quickest and largest recovery possible — so I doubt that he’s dragging this out on purpose.

      The difficulties you face are the reason why so many personal injury lawyers, myself included, don’t sue the uninsured, no matter how solvent they may seem. It takes a long time to collect against a person when you have to go after his or her personal assets. Luckily, your judgment will be good for a very long time, assuming your lawyer keeps up with the necessary filings.

      • christian says:

        thanks for the reply! The property does have some liens but he says that our lien came first so our judgment will be ahead of them. He says that in a month or two he will check if it’s feasible for him to put the $7000 into the sheriff’s fees. I assume he will get that money back if there is enough money left, correct?

        • fl_litig8r says:

          I’m not an expert in collection law, so I’m not sure how the fee issue works with the sheriff. Typically, the costs of collection are recoverable as part of such a proceeding, so I would assume that he wouldn’t pay the $7,000.00 if he didn’t think that he would be able to recover that from the levy and sale of the property.

  21. Richard Parker says:

    I suffred a Rupture quadriceps tendon requiring surgery. My Attonery has sent out Bill od Particulars to 3 different Defendants Attornet. Does mean a settlement has to agree with the 3 different

    • fl_litig8r says:

      No, you can settle separately with each defendant. There are strategic reasons why one defendant wouldn’t want to settle without another, or why your lawyer would not want to settle with just one, but there is no legal reason you would not be able to settle with each one separately (or settle with one and go to trial against the others).

  22. CJ says:

    I see you are REALLY helpful and very knowledgeable on this subject. I commend you for offering up what advice you can to people on such complicated and scary issues for people.

    That being said, I was involved in a motorcycle accident that required extensive surgery and rehab (about a year and the pain still lingers). The doctor released me and had no answer for the lingering pain other than ‘wait it out’. I have spent a lot of my own money keeping my business afloat during this down time (and probably will need more to keep it going until I am back). My attorney does not think I can collect on this money and views it as an investment I made. I disagree. I would not have had to make the investment if I were not injured.

    My question is two fold; Can I collect on money I spent after losing my ability to work to replace myself and other assets with my company? and How much longer will I have to float the company from my personal savings (time estimate from your experience)? I don’t have the capital to support another year of this and think I may be forced to close up shop if I am not reimbursed or made whole (physically) again.

    • fl_litig8r says:

      It’s not that you can’t collect lost income just because you are self-employed; it’s just that it’s more difficult to prove due to there being more “moving parts” to your income equation than a typical employee has. A typical “employee” plaintiff that has either hourly or salary-based income must prove one thing to establish his wage loss claim: did his injury affect his ability to show up and perform his job? After that, figuring out the damages is fairly easy.

      Conversely, a self-employed plaintiff must also account for all of the other variables which might affect his business’ income: the strength of the economy, fuel prices, cost of goods sold, etc. In your case, you had to hire someone (or pay someone for extra hours) to fill in for you while you could not work. If it were a simple matter of comparing your business’ income from the year prior to the accident to the year after, and seeing a drop in profit that correlates directly with the increased cost of hiring another worker, it wouldn’t be too difficult to prove your claim. Unfortunately, businesses rarely encounter the same exact costs and revenue from year to year to allow such a comparison. If your business had a great year after your accident and turned a higher profit than the year before your accident, you’re stuck trying to prove lost income even though your income technically increased. You can do this, but it makes it harder to explain to a jury. The reverse of this scenario is possible as well, and a defendant should not have to pay for any lost income which occurred due to your business suffering a terrible year after your accident, if that terrible year was caused mostly by market forces. It becomes even more of a mess if the business fails (can you prove that it would have continued on and regained profitability but for the accident).

      The bottom line is that you can recover lost income as a business owner, but you’re going to have 10x more explaining to do (both to your lawyer and to a jury) to make it happen. If the only thing you’re trying to recover is the additional cost of the worker(s) who replaced you, that would tend to simplify things, as long as you can reasonably relate the hiring of this worker to your lost time at work (as opposed to an expansion of operations — this would be an investment). If you want to recover other elements of lost income (say the business didn’t run as smoothly even with a replacement worker), you’re going to have a much harder time proving the relatedness of the lost income to your injury.

      My advice would be to try to make your lost income claim as simple as possible so that both your lawyer and a potential jury will have no trouble understanding it. Make it clear that the hiring of the additional worker was just to maintain the status quo (from when you could work), and not to expand business.

      If your lawyer keeps saying that you can’t recover for the replacement worker, ask him the following: Say I was a homeowner who cut his own lawn prior to the accident. After the accident, I could no longer cut my own lawn and had to hire a service. Are you telling me that I would not be able to claim the cost of that service as damages? (Answer: you could). You are allowed to recover all reasonable damages caused by the tortfeasor. If your lawyer tries to say that the self-employed can’t bring a lost income claim, get a second opinion. In my opinion, the cost of hiring of a replacement worker is definitely a recoverable element of your damages.

      As to your second question (how much longer must you float your company), I can’t say because I have no idea what the current posture of your case is. Has a settlement demand letter been sent out? Has suit been filed? Has discovery been completed? Have you mediated?

  23. Nee says:

    Reading through these post and seeing your responses made me want ask my questions. Almost a year ago my dad was in a car accident, he was a passenger in the car but the other party was at fault. His friend’s car was totaled on the scene.. However, maybe a month or two, his friend received a settlement of about $23,000. When this accident took place my dad had suffer many injuries, including a permanent (according to his doctor) injury. He had lost the use of both his hands for a couple of months, where as he had to be off work because they both were in cast. He also had cuts above his eyebrows and on his leg (stitches were needed).. He has finally completed his paper and has been released from the doctor saying he has permanent injury and will not have the same strength in his hands. As of current, His lawyer tells him that unless the insurance pays out 100%, he will not receive much. He stated that they will only pay out what the policy is worth and he could not get any more than that. Why is that? If the party who was at fault insurance will only pay a portion, shouldn’t my father be able to go after his friend’s insurance company? I guess I am trying to understand if someone has a policy for $100,000 and the insurance also only pays per claim/incident; if they pay one person $25,000, are they saying the other person who may have suffered more injuries (pain and suffering) is only allowed $75,000 because of the policy amount? Please help me understand…Thank you

    • fl_litig8r says:

      The liability insurer for the at fault driver will not pay more than the bodily injury policy limits provide. Technically, your father can sue the at-fault driver for the full amount of his injuries, but realistically, most drivers (especially those with low BI limits) can’t afford to pay any judgment above their policy limits, so it usually isn’t worth the time and effort of a trial to do so. There are generally two types of policy limits issued for bodily injury liability coverage: split limit and combined single limit. The at fault driver will have one of these two types, and how much coverage is left for your father will be affected by which type the at-fault driver had.

      Split Limit
      Most bodily injury liability policies have a split limit. If you look at the policy declarations page, it will look like: “25,000/50,000” or some other combination of a smaller number followed by a larger number. The first number is the per person limit. This limits the total amount of money any one plaintiff can recover under the policy. The second number is the per accident limit. This limits the total amount all plaintiffs can recover collectively under the policy from a single accident. So using the 25,000/50,000 example, here’s how it works in three different scenarios:

      1. Only One Plaintiff – This person can recover up to $25,000, the single person limit. The per accident limit doesn’t come into play when there is only one plaintiff.
      2. Two Plaintiffs – Each Plaintiff can recover up to $25,000, the per person limit. The per accident limit doesn’t affect this, as the combined total of two $25,000 per person limits doesn’t exceed $50,000.
      3. Three or More Plaintiffs – All of the plaintiffs combined cannot recover more than $50,000. Each individual plaintiff cannot recover more than $25,000. So, if all plaintiffs are equally injured, and the combined value of their claims exceed $50,000, the insurer will try to split the $50,000 equally among them. If they are not equally injured, the insurer will try to settle on a pro rata basis, splitting the $50,000 according to the value of each plaintiff’s claim. In no case will any one plaintiff get more than $25,000.

      So, if your father and his friend were the only two plaintiffs and the tortfeasor had a $25,000/$50,000 split limit policy, both your father and his friend would be able to recover no more than $25,000 each.

      Combined Single Limit
      A Combined Single Limit (CSL) policy will only have one amount listed as the bodily injury limit, and it is treated like the per accident limit in a split policy, with the exception that each plaintiff doesn’t have an individual limit placed on how much he can recover. So, if the tortfeasor in your dad’s case had a $50,000 CSL limit and settled with the friend for $23,000, there is now $27,000 left to pay your father.

      Other Insurers Who May Have to Pay
      Unless your dad’s friend was partially at fault for the accident, his bodily injury insurance won’t cover any of your dad’s injuries. Bodily injury insurance only pays when you are at fault.

      Uninsured/Underinsured Motorist (UM) coverage is a different story. If your father owned a car at the time of the accident, and he had UM coverage, that would be an additional coverage from which he could seek compensation. Also, in most states, if your father’s friend had UM coverage, that too would cover your father. I’ve seen one case out of Tennessee where a UM insurer was able to deny the claim of a non-relative passenger, but in most states all passengers, relatives or not, are covered by the policy of the owner in whose car they were riding.

      Bad Faith
      Short of the bodily injury carrier committing bad faith in failing to timely accept a demand for policy limits from your father’s attorney, I don’t see any other way for your father to recover more than the remaining BI limits (unless there is UM coverage available, as stated above).

      I hope this helps you understand what’s going on with your father’s case. If not, feel free to ask a follow up and I’ll try to clear it up for you.

  24. Nee says:

    So the Property Damage Liability Insurance for the at fault party, would that not cover my dad’s friends car? His friend should have had two different checks that came from the at fault party insurance provider, one from his car being lost and then the other from the BI, right? If so, then would my dad’s amount maybe increase since the policy is paying from 2 different parts of the policy?

    • fl_litig8r says:

      If part of the $23,000 settlement your father’s friend received consisted of a property damage settlement for his car, that part would not count against any bodily injury limits. It would come from the separate property damage coverage, as you thought.

  25. parkrch5 says:

    Once my attorney servers the defendant with the “Bills of Particular” what is the next step in the process and how long should it take for the defendant attorney to response?

    • fl_litig8r says:

      “Bills of Particulars” are only used in a handful of U.S. states anymore — as the “motion for more definite statement” and discovery have really made them obsolete — but New York is one of the remaining jurisdictions that still uses them (I saw that you have a New York internet provider). In New York, the recipient of a Bill of Particulars has 30 days to respond (CPLR 3042(A)) from the date of service.

  26. Mayra says:

    My accident was on July of 2011. My lawyer advised me to go to the chiropractor and i have been going for about 8 months now. I finished my sessions at the chiropractor and they have send out my file, with my medical information to the lawyer. I don’t want to get lied to or anything by this lawyer, because this is my first time ever dealing with legal matters, so that is my biggest fear. I have been calling the office for the past 3 weeks trying to find out what happens now, or what the next step should be, but they tell me that they will call me back all the time. Until today, when i called again,and the receptionist told me that, it might be months until the lawyer gets to my case, and that there is a 2 year limit for the case to work on, so i still have until 2013!!! this is unbelievable, and crazy. All i want to know is that they are not lying to me, because i am worried, and if there is anything i should know, or do. And also, if this lawyer takes forever, can i transfer my case to another lawyer. I’ve read about it, and it it says that if the lawyer has not started on the case, he can not charge me for any work done. Keep in mind, i dont want to change lawyers, i am just concerned on how long it will take because these type of things make me nervous.
    Thank you.

    • fl_litig8r says:

      The “it might be months until the lawyer gets to my case” line is a big red flag that your lawyer probably has too many cases, and shouldn’t have taken yours on. The fact that your statute of limitations won’t run until 2013 is no reason for your lawyer to ignore your case for months.

      After you finished your chiropractic treatment, assuming that you are at MMI, the next step for your lawyer would be to send a settlement demand letter to the insurance company for the at-fault driver. This is something that shouldn’t take months, as most of the time these letters are written by paralegals and are only fine-tuned by the lawyer.

      Before looking for another lawyer, try the tips I suggest in my article about lawyers not returning phone calls, specifically the scheduling of a phone conference with your lawyer or a face-to-face meeting. Discuss with him personally (not through the paralegal) what the next step in your case is and when he expects to accomplish it. If he’s still talking about it taking months (without a damn good reason), see if he’ll agree to let you out of your contract so you can find a lawyer with a lighter caseload.

      If you fire him, he may still be able to assert his right to fees from you (assuming you ultimately make a recovery in your case). These fees would be based on an hourly rate for the time he put in on your case, also known as quantum meruit, and not the percentage stated in your contract (though quantum meruit fees are capped at the fee percentage stated in the contract, so the lawyer can’t get more than he would have under the contract). It will really come down to 1) whether he intends to bother asserting this claim and 2) whether a court finds that his termination was without “good cause”. An anticipated delay in the prosecution of your case for several months due to the lawyer’s workload would be good cause in my eyes, but I’m not your judge.

      If your lawyer hasn’t filed suit yet (I assume he hasn’t), he shouldn’t be able to assert a charging lien on the proceeds of your case (this is a lien on your recovery which a subsequent lawyer would have to honor — if it is held valid by the court, your new lawyer would need to pay your old lawyer at the time he disburses your settlement money). However, depending on your fee contract, he may assert a retaining lien on your file, which allows him to hold on to your file until his costs (not fees) are paid. Usually, this won’t be a problem, as a subsequent lawyer will pay the costs to assume your case. He’d likely have to pay those same costs anyway if he were to try to assemble a new file on you from scratch (such as the cost of medical records).

      So, my advice is to try to work it out and light a fire under your current lawyer through a phone or in-person meeting. However, if it still seems like he’s not going to pursue your case in a timely manner, ask to be let out of your contract. If he says no, then fire him, find another lawyer (don’t forget to ask my 2 questions this time!) and deal with the fee issue later.

  27. Aedion says:

    Good Evening!

    Firstly, thank you for the excellent article! It definitely puts my mind at ease somewhat regarding delays.

    I will do my best to keep my question very brief (hopefully):

    Four months ago I was rear ended pretty hard by a drunk driver in a school zone while I was at a dead stop at a stop sign. We have confirmed evidence in the police report that he was extremely intoxicated and cited/arrested for this.

    While I had very irritating but not seriously debilitating lower back pain before the accident, I was otherwise fine. After the accident, my back pain increased twenty fold to the point where I cannot sit, sleep, or even stand for very long. I continuously get dead spots and numbness in my legs. Forget anything more strenuous than a short walk!

    I also began to experience excruciating pain in my neck that regularly causes paralysis in my right arm.

    Further medical investigation from an MRI scan revealed that I have 2 badly herniated and bulging disks in my neck that are aggravating nerves that control arm function and caused a permanent curvature. While apparently I had very minor arthritis in my back (Bah, at 22 years old!), the scan also revealed 3 herniated and bulging disks in my lower lumbar that are severely restricting my mobility.

    A GP, Chiro, and Orthopedic doctor all concluded that the herniation/bulging in back discs and entire neck damage was caused by the accident.

    I have only been able to work a partial schedule because of my injuries and I am not able to make rent! At first the insurance companies were both claiming that I have made this up, as the damages to my car were only about $1000 (keep in mind my car is also 11 years old. Its not a beauty queen, that’s for sure!) but MRI results and 3 doctor conclusions later…well, the proof is in the pudding.

    (For the record, the doctors are now treating me with powerful steroids, they are trying to avoid surgery although it may be a possibility.)

    The drunk driver who slammed into me has a 30,000 policy limit just the same as I do. Ironically, we BOTH have the same insurance company which has really seemed to complicate things.

    So what’s my question to you?

    1) My lawyer seems *extremely* confident that the insurance company will fold quickly and settle for the $30,000 policy maximum to cover my four months of losing half my pay (probably about $4000 alone), medical, and the whole nine yards. While I understand every situation is different and you are not the consulting attorney, what is your opinion?

    2) Three years ago when I signed up for my insurance as a dumb, broke kid, I signed away my right to PIP (I know, feel free to mock me now). My attorney says this will not be an issue since I have substantial UI coverage. Thoughts?

    3) My lawyer also seemed way more concerned with my UI coverage than attacking the other driver’s policy even though he has already been considered at fault… When I questioned him about this, he briefly glossed over that he would be hitting him too, but my UI coverage would pay for most of it. Does that sound weird, or did I just misunderstand something basic?

    4) After this my lawyer is also going after my health insurance who has so far been paying for most of my medical attention and treatments, however has denied me short term disability (I have fees deducted from my paycheck every month to have this extra coverage with my health insurance company). He plans on attacking them as well once we are done with the car insurance warfare. Thoughts? Is this commonplace?

    So that wasn’t very brief… but if you could find the time to throw me a bone, I would be so appreciative! 🙂


    • fl_litig8r says:

      I think your lawyer feels that the defendant’s insurer will cave due to the clear liability of the defendant, the seriousness of your injuries, and the insurer’s exposure to a bad faith lawsuit if it doesn’t immediately tender its policy limits. The only concern I have is the fact that you have not been considered for surgery. I’m no doctor, but in my experience, once you start having severe radiculopathy (the occasional “paralysis” in your arm), surgery is likely needed to correct this — it means one of your herniated discs is impinging the spinal cord, or at least some significant peripheral nerves. Non-surgical cases tend not to be worth near as much as surgical, so that would have a significant impact on your damages.

      Just to be clear, I’m not saying that you should have surgery just to boost the value of your case. I’m just hoping that while your doctors are being cautious and hoping that you can recover through non-surgical means, they are not discounting the likelihood that you’ll eventually require surgery. You don’t want to settle your case for a “non-surgical” value only to find out that a year later your doctors are going to say “looks like you really do need surgery”.

      That being said, given the limited info you’ve presented, you’re lawyer is probably right about the defendant’s BI insurer caving quickly. Herniated discs are serious, and I don’t think the insurer will want to gamble with the unlimited exposure it would face in a bad faith lawsuit over $30,000.00.

      I’m betting that your lawyer is focused on your UM insurance (that’s what we call Uninsured/Underinsured Motorist coverage where I practice) because he considers the defendant’s BI insurer to be a given. It’s not that your UM insurance will pay more than the BI insurer. In fact, your UM insurer’s liability doesn’t even start until your damages exceed the BI insurer’s limits — so your UM insurer only pays for the value of your case which exceeds $30,000.00. Your lawyer is probably most concerned about the UM issue because he’s going to have to prove that a non-surgical case (as of now) is worth more than $30,000.00 to convince them to pay anything. It’s not that the UM claim is more attractive or more valuable. It’s just that it will require more work for him to get them to pay than it will for the BI insurer.

      As to your short-term disability coverage (which is a completely separate coverage from your health insurance, even though the insurer may be the same for both), if you got your policy through your employer, it’s going to be governed by federal ERISA law. If your claim has already been denied, and it’s an ERISA policy, you only have 180 days to appeal the denial of your claim (you appeal to the insurer) or you lose the right to sue them. So, don’t wait too long to address the short-term disability claim. Most personal injury lawyers are not well-versed in ERISA law, so don’t assume that your lawyer is (many wrongly think that they are handled like any other breach of contract claim against an insurer). You may need to hire a separate lawyer to pursue the short term disability claim — one who regularly handles ERISA disability cases. Make sure your lawyer knows what he’s doing for your short-term disability claim before it’s too late.

      One final thing — if you do recover short term disability benefits, you’ll likely have to pay the STD insurer back from your personal injury recovery, just as you have to pay back your health insurer.

  28. M Rose Graham says:

    My daughter had arthroscopic hip surgery that was healing well and was a success; she had just met with her surgeon 2 months post op. Everything was going great.
    Then a car t boned her a week later, it tore open her hip capsule where the stitches were and possibly re tore her labrum, plus fractured her tibia, a hematoma in the temple area and a mild concussion.
    She ended up having to have an open hip procedure done to fix the damage. The surgeon said it was consistent with the accident.
    The persons insurance co. agreed to pay the policy max which was $25,000 now our attorney is going to submit to our um policy for our max which is $100,000. Her bills for the operation ect. are around $70,000, although she may need another surgery plus she became majorly depressed due to having to pull out of school again and not being able to do anything because she was in constant pain. So there are Dr’s / hospital chargers due to the depression also which could be a grey area. I think they want to add all of this to the claim but at that point there wouldn’t be enough. So in the end I assumed she would get nothing except of course the pain that she still has.
    She is doing well on Lyrica though and is living life again.
    The attorney’s office said there is a stipulation that makes it so the injured do get a % of the award. Can you explain this and how they come up with the percent. We live in Tennessee.
    She is 8 months post op from the open and 21 months post op from the original surgery. The open was horribly painful for her, she was in a wheelchair for a while.

    • fl_litig8r says:

      I’m really not sure what the attorney is referring to when he says stipulation. Usually, stipulations are private agreements, not statutes or caselaw. He may mean that he has reached an agreement with the health insurer to divide the settlement proceeds so that he, your daughter and the health insurer each receive a certain percentage of the total settlement. He may mean that he has a stipulation in his fee agreement that will reduce his fee to ensure that your daughter receives a certain percentage. Neither of these types agreements would be subject to a standardized formula (as they are not required by statute or common law), so how he would arrive at the percentage allocated to your daughter would be purely a matter of negotiation.

      From my own research, it appears that Tennessee applies the “common fund” doctrine to health insurance reimbursement claims (even ERISA-based claims), meaning that the health insurer would have to reduce its claim by the percentage of attorney’s fees charged by your daughter’s lawyer. This, in and of itself, would not guarantee that your daughter would receive a certain percentage of the recovery — a large enough lien by the health insurer, even reduced by attorney’s fees, could still equal or exceed the total amount of the settlement. Therefore, I can only assume that when the lawyer refers to a “stipulation”, he means a private agreement such as the kind I just mentioned.

      It is not uncommon in cases involving serious injuries, large liens and inadequate liability insurance for there to be a three-way split of the proceeds (1/3 to plaintiff, 1/3 to lawyer and 1/3 to health insurer). Of course, this largely depends on the generosity of the health insurer and the negotiating skills of the lawyer.

      If you can, find out from the lawyer some more specifics about this stipulation and what percentage is being guaranteed to your daughter. I can’t really shed any more light on it without more information.

  29. bill says:

    My lawsuit was settled in New Jersey on march 26th. When we agreed to the settlement, they were to cut two checks one to me and the other for my attorney for his fees. It said the checks were to arrive in one week after paperwork was signed. Its now april 24 and we still dont have the checks. My attorney said he is going to call the Judge to complain. Is there any other action I can take to speed up the process? They are well passed the week that was in writing.

    • fl_litig8r says:

      There’s not a lot you can do to speed up the process. It sounds like your lawyer is doing all he can — he may to file what’s known as a Motion to Enforce Settlement Agreement if the checks don’t come soon. At this point, it really boils down to two things: (1) the insurer owing you interest on the late payment and (2) whether it’s worth it to void the settlement due to its noncompliance — which won’t get you your money faster as now you’ll likely have to wait for trial.

      You may be able to file a complaint with the state department of insurance. If this insurer has been slow-paying other plaintiffs (who also complained), some disciplinary action might result. Such a complaint might also bring your issue to the attention of someone at the insurance company who will take it seriously.

  30. Mo says:

    I just got word that my lawyer has a check with my name on it and I need to come in and sign it for closing but now i’m being charged 40% and not the 33% we spoke about . I looked over my contract and it wasnt stated there. I just dont understand how she will get back more than I do. Her services where not that good. Please help me understand this better.

    • fl_litig8r says:

      Be sure to review your contract carefully. Fee contracts that automatically increase from 33 1/3% to 40% after a lawsuit is filed are fairly common. To trigger the 40% fee, usually the defendant needs to file an Answer to your Complaint (and in many cases, that Answer must deny liability — check your contract). So, if your lawyer filed a Complaint, but the defendant didn’t file an Answer before you settled, there’s a good chance your fee should still be 33 1/3%. Of course, if your fee contract does not state that the fee will increase to 40%, you should dispute the increase.

      As to your lawyer getting more than you from the settlement, I assume you are not including the part of the settlement going to pay back your health insurance or to satisfy any letters of protection. Any amount going to the attorney’s costs are not a profit to her, as she had to incur those costs in order to deduct them from the settlement. I have a feeling that the amount paid for your benefit, in addition to the amount paid directly to you, exceeds your lawyer’s share (unless her costs were unusually large).

      In any event, if you agreed to this fee structure in your contract, you don’t have much reason to complain about it now. If you were unhappy with the amount of the settlement your lawyer obtained for you, you shouldn’t have approved it. Now, you may not have realized how much was going to be deducted from the gross settlement to satisfy attorney’s fees and medical liens, but this is something every client should ask about before agreeing to a settlement. If you didn’t ask your lawyer “how much will I be paid from this settlement” before agreeing to it, you share in the blame for the poor outcome.

  31. parkrch5 says:

    I’m the process of a slip and fall lawsuit requiring surgery. My attorneys are meeting with the defendant’s attorney, my questions – what is normally discussed during this meeting and how long does it take for a deposition date to be set?
    Thanks you.

    • fl_litig8r says:

      There could be any number of reasons for the attorneys to meet. In federal court, the attorneys meet very early in the lawsuit for what’s known as a “parties planning meeting”, at which they discuss scheduling matters, such as discovery deadlines. Your local court may have a similar requirement.

      As to when your deposition will be set, expect to be have to answer some written discovery first, such as interrogatories. The defense will also need time to obtain your medical records, which they’ll subpoena directly from your medical providers, before scheduling your deposition.

      The initial written discovery and medical subpoenas are usually sent out fairly early on in the case. You will have 30 days to answer the written discovery directed to you. Subpoenas usually allow less time than that. Expect your deposition to be set after you answer this initial discovery (assuming there aren’t any issues with your answers which might cause the defendant to file a Motion to Compel better answers). Exactly when it will be set after the initial discovery is finished will depend on your attorney’s and opposing counsel’s schedules. Frequently, the lawyers will want to do more than one deposition at a time, so they’ll find a day when both of them have all day long to devote to depositions. This can cause some delays, but once your deposition date is set you will receive notice of the date (though hopefully your lawyer will clear the date with you in advance).

      So, long answer short, you should know when your deposition will take place shortly after responding to the defendant’s initial discovery.

  32. parkrch5 says:

    My deposition date has been set. My question – I am suing five different defendants (all part of the same law suit), will all five attorney ask me questions during my disposition? If the defendants want to settle, dose the action help the defendants pay out less?

    Thank you..

    • fl_litig8r says:

      Yes, all five attorneys will be allowed to question you, but it’s probably not as bad as you think. They’ll each go one at a time (not all at once), and usually the first attorney will cover most of the things the others need to know. The others will just ask follow-up questions or ask about things the first attorney may have missed — or things that are specific to their own client. They won’t ask you the same questions over and over.

      As to settlement, the short answer is that having multiple defendants does help each pay less, especially as to economic damages, such as medical bills. There are complicated legal issues which vary from state to state which govern how damages are apportioned among multiple defendants should the matter go to trial. In some cases, two or more defendants will be responsible for all damages on a “joint and several” basis, meaning that each defendant is responsible for the whole of your damages, and that payment by one will reduce the amount you can collect from the others proportionally (no double-dipping).

      If damages are apportioned (not “joint and several”), each defendant is liable for your damages based on his percentage of fault for your accident. So, if you have three defendants with the percentage of fault being split 50%, 30% and 20% among them, each of these defendants will be responsible for paying only his or her percentage of your damages (and a settlement with one would not affect the amount the others have to pay).

      This can get even more complicated, because some of your damages may be handled on a joint and several basis, and some may be apportioned. For example, your state may treat economic damages as joint and several, but non-economic damages (pain and suffering) as apportioned. So, if you settle with one defendant, the other defendants may get a set-off as to your economic damages, but not as to your non-economic damages.

      I’m sorry if this doesn’t make things clearer for you, but you’ve asked a simple question with an extremely complicated answer, depending on the state and the sources of the defendants’ liability. I may take a stab at writing a whole article about this, because it’s a subject that would require a very long and thorough explanation.

  33. jessa says:

    Whats happens when the insurance company ignores my attorney? whats next..?

  34. jessa says:

    then they will”settle”…? Its been since October…

    • fl_litig8r says:

      Not necessarily. However, they will have to hire an attorney to defend the lawsuit and they won’t be able to ignore your lawyer any more. Whether they will want to settle or not depends on many factors, such as how clear the liability of their insured is, the severity of your injuries and the amount of insurance coverage available. See this article, which discusses the value of your lawsuit, to see what factors the insurer will consider.

      Even if the insurer doesn’t want to settle, at least filing suit will start moving your case forward towards trial.

  35. john says:

    Hey I just got a letter from my lawyer it says in part of the letter ‘ We need you to be in our office at 12:30 so the attorney can prepare you for the deposition.’ What does this mean? And what should I expect to happen? I have social anxiety and I really don’t wanna ruin my chances of winning because of my disorder

    • fl_litig8r says:

      You should read this article and this article, both of which deal with preparing for and giving your deposition. The prep meeting isn’t stressful at all. Your lawyer will basically give you the advice I’m giving you in these articles.

      As to the deposition itself, try not to get too worked up about it. Everyone is a little nervous while being deposed, even lawyers (yes, we occasionally get deposed). Usually, depositions are done in an informal setting (a court reporter’s office or your lawyer’s office) and most of the time they aren’t really confrontational. You just have to answer the defense lawyer’s questions as best you can. It’s not a test. “I don’t know” and “I don’t remember” are perfectly acceptable answers. Your lawyer will be there to keep the defense attorney in line, if necessary, but he won’t be able to help you answer questions during the deposition.

      If you still have questions after reading those articles, feel free to ask. I think that knowing what to expect will help alleviate some of your anxiety. It’s really not that bad. I’m sure that you’ll do fine.

  36. parkrch5 says:

    I have asked my attorney on numerous occasions the amount of damages we are suing the defendants for.
    My attorney refuses to give me an amount. Why is my attorney taking this approach?

    Thank you for all your help during my Law suit.

    • fl_litig8r says:

      In some states, like Florida, you don’t specify the amount for which you are suing in your Complaint. You just state that the value of the case meets the jurisdictional requirement of the court (e.g., in Florida you only plead that the value of the case “exceeds $15,000.00” if you file in circuit court). So, when you ask how much you are suing the defendant for, the answer may be “as much as we can get,” because you haven’t specified an amount. The real questions are:

      • What was the amount of our last settlement demand,
      • How much do you think my lawsuit is worth, and
      • If we go to trial, how much will you ask the jury to award?

      Some lawyers are reluctant to tell their clients exactly how much they ask for in settlement demands because they will always start way too high and don’t want the client to get the impression that the demanded amount is the actual value of his case. At a minimum, though, your lawyer needs to get your authority to settle for a certain amount before making any demand. So, if you give your lawyer authority to settle for $25,000.00, he can make settlement demands in any amount equal to or above that (and will always start a lot higher). You can get a good idea of how much your lawyer thinks your case is worth from how much he requests in settlement authority.

      If your lawyer is making settlement demands and has never gotten authority to settle “at or above” a certain amount from you, and you were not foolish enough to give him authority to settle the case for “any amount he deems fair”, he’s violating the rules of ethics.

  37. gloria doomes says:


    • fl_litig8r says:

      I’ll need more information (and a more specific question) to help you. I’m pretty surprised to hear that an injury claim from an accident that took place in 1994 is still ongoing. I’m assuming that you have a lawyer and that a lawsuit was filed on this case, yes? Has the case gone to trial yet? Did it go through an appeal (maybe more than one)? I need to know the current status of your case (at a minimum) to answer any questions. You’d probably get a better answer directly from your own lawyer. If you’re having trouble with him returning your phone calls, read this article. I’d be glad to help as best I can, but I need to know what your question is.

  38. Diane says:

    I fell in a pothole in April 2009, I have a lawsuit against the city of Ny and A gas company. I have had a second surg. on my right ankle on April 24th 2012. I’m going again for PT. I have been to 2 depos and had two Imes prior to my 2nd surg. Question- this has been more painful and i had suffered more. I need to ask you a question I have lost my job and now have to pay all the medical bills what happens to the valve of my lawsuit. What can I do. secondly, Why is this lawsuit taking so long?

    [I added this from your second post — fl_litig8r]

    I also forgot to mention that i’m a nurse who was on my feet all day. I dont believe I can work full time again. When i am cleared to go back to work and find a job i will ask for part time only. my Lawyers will meet again on june 19th what am I excepting from this next hearing.

    • fl_litig8r says:

      As to your first question about losing your job as a result of your injuries, lost earnings, both past and future, are damages you can recover. Now, this doesn’t mean that you could choose to not work at all just because you are not capable of performing your previous occupation. If you are capable of work that pays less, such as the part time work you plan to resume when you’ve sufficiently recovered, you can recover the difference between the earnings you made prior to the injury (adjusted going forward for anticipated pay increases) and the earnings of which you are now capable. You may need a vocational rehab expert, an economist, or both, to prove this issue — especially as to future lost earnings, which can be significant.

      I’m not sure you’re asking this, but if you lost your health insurance and need medical care while your case is still pending, you could try a letter of protection. If you’re asking whether you can recover the value of the lost health benefits as an element of damages, that would be included in your lost earnings. Of course, if there are jobs you can perform that would earn you more money than part time nursing work, and that do provide health benefits, these would be the jobs the jury would consider in determining your lost earnings. You can’t recover damages that you can mitigate through other gainful employment just because you want to stay within your chosen field. As long as you have training and skills that could be applied to other more gainful employment, the jury will use that type of employment in determining your damages.

      As to why your case is taking so long, it’s very likely because you just had another surgery in late April 2012. You are probably not even at maximum medical improvement yet, which is necessary to know the full extent of your damages and the value of your case. It is a bad idea to settle a case before the plaintiff reaches MMI, as there may be complications which increase the amount needed to fully compensate you.

      Regarding the June 19th issue, I can’t tell you what this is, as it’s not clear to me whether this is a client meeting with you, a meeting with the other side, or a court hearing to which you refer.

  39. Paolo says:

    What should I do as an OR licensed Massage Therapist with liability insurance, if I receive a sexual assault & Battery Civil Lawsuit settlement letter?

    • fl_litig8r says:

      Notify your liability insurer immediately. Failure to do so could allow it to deny coverage for the claim. Your insurer will obviously want to interview you about the claim, as it will need to know whether to try to settle it or fight it (they will provide you with a defense attorney if needed).

      I know this is a civil settlement request, but because the alleged conduct could give rise to criminal charges you may want to consult with a criminal defense attorney as well (you would have to pay for this on your own). Depending on how “at risk” you feel about these charges, you may want to consult with the criminal lawyer before talking to your insurer — but do it very quickly because timely notification of the insurer is essential to preserving your coverage.

      • Paolo says:

        Thank you!
        She is claiming that I massaged her breasts. It was a full hour massage. I left afterwards to go to another massage. The staff never saw her leave. But She left me $10 tips, which my spa owner and another employee collected for me after she left. Then a few hours later she had her friend call and accuse me of massage her breasts. That was back in March.
        The letter was sent to me on 5/21. So I have about 3 weeks. I have contacted a local criminal attorney and he suggested I contact my insurance right away and a civil attorney.
        So you feel I should contact him again and have him look at my case Monday, before I contact my insurance?

        • fl_litig8r says:

          If you’ve already discussed the facts of the case with the criminal lawyer, it should be o.k. to contact the insurer without talking to him again. Understand that your first comment didn’t say whether you were denying the accusation, so I didn’t want to assume that you did. If there was any gray area as to whether you did anything wrong, I didn’t want you to tell your story to the insurer and risk saying something that could support criminal charges without first running this by a criminal defense lawyer.

          As it appears that you are flatly denying the alleged wrongdoing, there’s a lot less risk in talking to the insurer. I really wouldn’t let any more time go by before notifying the insurer. It would also help to talk to your co-workers so that everyone’s on the same page as to what happened (make sure that no one’s going to contradict you). Do not ask anyone to lie or exaggerate for you. This includes asking someone who has no direct knowledge of the facts to back up your story (even if it’s true). If it comes out that co-workers lied on your behalf, people will assume that you’re guilty even when you’re not. This is just a warning. I’m not assuming you would do this. Sometimes friends offer to “help you out” by backing your story even when they don’t know anything. Be sure to turn down any such offers and tell everyone you just want them to tell the truth.

          There’s no need to hire your own civil defense attorney. As I said before, the insurer will hire one for you if it’s necessary. Depending on the policy language, it may also hire a lawyer to represent you should this issue be brought before your licensing board.

          • Paolo says:

            They are asking $10,000 I think that is according to Oregon Law. I am insured up $1,000,000.
            Do you predict my insurance Co. will pay them or fight it? If they do, then it could/will go to trial then?
            I am very Thankful for your time and help.

          • fl_litig8r says:

            I would expect your insurer to fight it unless they can get rid of it for “nuisance value” (like $500.00). I doubt that this is a case that would go to trial, mainly because it isn’t valuable enough and at best it’s a “he said/she said” case. Unless the plaintiff’s lawyer is a relative or has some other personal relationship with the plaintiff, I can’t see him (or her) wanting to even file a lawsuit over such a claim. They may be hoping to just get whatever they can as a settlement based on the demand letter and a few phone calls.

  40. Diane says:

    I’m sorry I was confusing with my frist questions to you. Frist of all, I didnt lose my Job due to my Injuries it was unrelated to my injuries. My question to you because I lost my Job prior to my 2nd surg how will this affect my case? Secondly, my surg will write that I can only go back to work part/time as a Nurse when I can find a Job due to the fact it is difficult being on my feet all day due to the injury of my Right feet. Will that hold any weight regrading my case? Thridly, The marjority of my medical Bills were pd from the onset of my Injuries 04/09/2009-March /30 /2012.(as a lein attached to it already) thats when I lost coverage except for the bulk of the surg, aftercare all the Pt sessions, which I was told I will need more an addittional 4 wks worth. this will have to be pd as you explained before as a protection letter against my lawsuit. My question the medical is now up to at least 25000 from the start of all this. As of June 19th I was told from my Lawyers that they will be given the signed medical release forms from me to the other Atty’s so they can get my medical records from the lastest surg with the exception of the Pt because I’m not done with them yet. Is this common and in Your opinion what happens next. When doe they start talking trial and/or mediation dates. 1 more question what if one of the lawyers want to settle frist and not the other (I’m suing 2 parties) can they or do I have to wait for both of them to make up there minds. And do yyou think there will be another IME in my future? thank you again Diane

    • fl_litig8r says:

      Because you didn’t lose your job due to your injuries, obviously any lost wages attributed to your unrelated job loss aren’t damages you can recover in your lawsuit. However, because your injuries affect your ability to work in the future, you can still recover for your impaired earning ability — it just becomes more difficult to quantify (when would you have found a new job? would you have been able to find a job in your field but for the accident? etc.). Your surgeon’s opinions about your current ability to perform your job will carry weight. In fact, such an opinion would be necessary to support a “future wage loss” claim. The defendant can dispute your surgeon’s opinion using his own medical expert, such as an IME doctor. This becomes an issue of fact for a jury to decide should a trial be necessary.

      It’s not unusual for plaintiff’s lawyers to give medical releases to the defense to allow them to obtain your medical records before a lawsuit is filed (after a lawsuit is filed, the defendant can obtain them using a subpoena). Personally, I don’t give medical releases to the defendant. I obtain the records myself and then forward them to the defendant. I don’t like the possibility of the defendant seeing my client’s medical records before I do (in case there’s an error which needs to be corrected, for instance). I would never give the defendant an open-ended medical release (one which is good for a certain period of time, like a year) — I would make the release good for only a single use. This way, you know the defendant is only getting records up to a certain date, and that it can’t keep updating them without your knowledge past that date — again, this is because I want to see the records before the defendant. Many lawyers don’t have a problem given defendants open ended medical releases. It’s really just a matter of opinion and personal preference.

      With respect to mediation and trial dates, neither of these may be necessary. Many cases settle just through informal negotiations before a lawsuit is ever filed. Sometimes the parties will want to mediate before a lawsuit is filed. Most of the time, mediation won’t take place until the lawsuit is filed and the parties have had the chance to engage in some discovery, such as interrogatories and depositions. It’s usually several months after the lawsuit is filed before the parties set a mediation date. As to trial, expect that to be at least a year and half (probably longer) after you’ve filed a lawsuit.

      To answer your question about settling with multiple defendants (you sure did manage to squeeze in a lot of questions here), you can settle with just one and proceed with a lawsuit against the other. You don’t need them both to agree to settle. Of course, sometimes there are issues which make it impractical for one defendant to settle without the other, such as a case where one defendant is merely “vicariously liable” for the actions of another. These are strategic and practical barriers to settling separately, not legal barriers.

      As to your last question about whether you will need to undergo another IME, I would not be surprised if you will, given that you’ve had another surgery recently. The defendant may need another IME to determine your current level of functioning in light of the new surgery and physical therapy.

  41. bluebird says:

    My husband is going for a jury trial in a few weeks. The insurance co. is only offering $30,000 when the limit is $150,000. Can a jury award more money than what was offered? I hope so!

    • fl_litig8r says:

      Yes, the jury can award more. In fact, if you are referring to a third-party insurer in a personal injury case (such as a defendant’s automobile insurer), the jury can award more than the policy limits. This would result in what’s known as an “excess judgment,” and any amount awarded above the policy limits would be a judgment against the individual defendant. In some cases, this excess judgment could result in a bad faith lawsuit against the insurer (and the insurer could have to pay the full judgment, regardless of policy limits).

      • bluebird says:

        Our attorney is going for the $30,000 since thats the highest offer. I just wanted to know if the jury can award above that amount if they wanted to.

        • bluebird says:

          My husband also has 2 herneated discs in the L4 and L5 that didn’t bother him too much until about 6 months later. He woke up one morning and couldn’t move because of the pain. The lawyer won’t bring this to the courtroom because he claims that my husband waited too long to have this evaluated. It took several referrals and months of waiting to see the specialist. MRI concluded the results. I wish now that we could get another lawyer but unfortunatly we cant.

          • fl_litig8r says:

            Delays in reporting, diagnosing and treating injuries make it very hard to relate them to an accident claim. I don’t know that I would consider a 6-month delay to be prohibitively long, but if your husband never reported any back pain to any doctor during this time I think it might be a tough sell to a jury. If he had reported back pain soon after the accident, but just didn’t get a diagnosis until 6 months later, that’s not nearly as bad. However, from your description it sounds like he didn’t have the pain until well after the accident. Your lawyer probably thinks that trying to include this claim may damage your husband’s credibility with the jury and hurt his chances to recover for his other, more clearly-related injuries. I can’t say that he’s making the wrong call (he’s in a better position to know).

        • fl_litig8r says:

          A jury can award more than the plaintiff’s lawyer requests (assuming the facts support a higher award), but they usually don’t. Of course, usually the plaintiff’s lawyer asks for as much as the facts will support, so this isn’t an issue.

  42. nj says:

    I was injured in a car accident early 2010 by a drunk driver. Since then I was in an out of doctors offices, therapists, etc. Finally in March I was released by the pain management doctor who was the last of the bunch.
    I received a letter from my attorney letting me know they are in the process of obtaining medical records etc. and letting me know of the next steps.
    In this letter they also requested the following: “We would like you to prepare a letter addressed to “To Whom It May Concern” explaining in detail how the injuries you received have impacted your daily life.”
    I am hoping you can help me with this because I have no clue where to start or what to write or say. Are there certain things I should focus on more than others, is there certain terminology I should use? I have never had to do this before and I am not sure how to even start this off.
    Your help would be so greatly appreciated.

    • fl_litig8r says:

      Don’t overthink this. It’s very likely that your lawyer isn’t planning on sending this letter to anyone (unless it’s really good). It’s more likely that he’ll just incorporate some of the things you write into his demand letter. So, don’t be concerned about “proper terminology” and just try to write it in your normal voice.

      As a suggestion, after a brief introduction (e.g., “I am writing this letter to let you know how the accident of [date] and my resulting injuries have affected my life”), I would start with a “day-in-the-life narrative” which just describes your typical day (“Let me start by describing for you how my injuries affect me on a daily basis”). Then, just go through your typical day, from the time you wake up until you go to bed again, identifying the things that are made more difficult or painful (or that you can no longer do) due to your injuries. It doesn’t need to be a minute-by-minute account. Just focus on the things that are affected by your injuries. For instance, if you wake up stiff and sore, not wanting to get out of bed, say that. Say how long it is before the stiffness goes away. If you have problems or pain showering, getting dressed, making breakfast, etc., describe these and the pain level you experience. Tell them about the things you dread doing every day because you know it will hurt (e.g., loading the dishwasher, climbing stairs, etc.). If you work, include your typical work day. if you do the grocery shopping, describe your trip to the store. Describe how often you take any pain medication and how the side effects affect you (drowsiness). Describe interactions with your family (if any) and how they have changed since the accident (you’re more cranky from pain, drowsy from drugs, etc.). When you’re done describing your typical day, end with something like “and as I toss and turn trying to fall asleep, I know I’ll just have to repeat the whole process the next day, and probably every day, for the rest of my life.” It may help, starting tomorrow, to just go through a day being mindful of your pain and how the things you do are affected by your injuries.

      After the “day-in-the-life stuff”, you can talk about other activities (such as recreation) which you used to do but which now you either cannot do, or cannot do without pain. Dancing, golfing, bowling, fishing, swimming, shopping at the mall and going for long walks are just a few examples. Obviously, this is going to be very specific to you. I had a client once who loved to paint, but after her cervical injury could no longer tolerate extending her arm out in front of her for long enough to get any enjoyment from it any more. Describing how something you were once passionate about was taken away from you can be very moving.

      Of course, be honest. You want to paint the picture of a brave survivor who must now face daily adversity, not a whiner who exaggerates her symptoms. Include things you look forward to and things that provide you relief — “after doing X, I get to lay down and relax for half an hour, a time I look forward to every day, after which my pain has eased enough to continue on with Y“.

      If there were any things you had one day dreamed of doing which seem unlikely now because of your injuries, such as learning to scuba dive/snorkle, run a marathon, take up golf, or just lose weight, you may want to close your letter with this for added impact.

      Remember, all of this is just a suggestion. If you’re not the most gifted writer, you should still prepare the first draft of the letter yourself, then ask someone who writes well to proofread it and help you with revisions (but not me — no offense).

      • nj says:

        Thank you for your input. It is greatly appreciated.
        I will take what you have said and use it for sure. I will start to write in a day or so.
        Thanks Again!

  43. Melissa H. says:

    I was injured in January of 2008 on the job { laceration to lower arm/9 stitches/visible scarring }… I hired a lawyer that same month and it has now been approximately 4 years and 4 months and the case still has not settled…There are 3 parties involved in the lawsuit….The thing that troubles me is that I have asked my lawyer how much he suing for and his reply is ” I’m waiting for them to offer a fair amount”. Is this a common practice among lawyers, to allow the parties being sued to set an amount? Because I was under the impression that my lawyer would be the one who would suggest an amount roughly consistent with my injury/pain and suffering etc. Thanks in advance for your guidance.

    • fl_litig8r says:

      It sounds like he’s dodging your question because he doesn’t want to commit to an amount the defendants may never reach, and which might later require him to backpedal about why you should settle for less. It’s likely that he wants to see what the offers are to know what a realistic settlement amount is so that he can recommend it (and avoid going to trial). Realistically, I doubt that most lawyers would want to take a case involving a scar to the arm to trial. Not that I’m trying to minimize your injury, but if there’s no impairment to the limb’s function, your whole case is going to consist of past medical bills (I assume that after 4 years the scar is as revised as possible), past pain and suffering (I assume it doesn’t hurt now) and past and future emotional distress. The emotional distress element will depend on how noticeable the scar is and whether you’ve had to have any counseling as a result of the scar (self-consciousness, etc.).

      Scar cases can be pretty tough to place a value on, mainly because they will vary so much in appearance from case to case that it’s nearly impossible to find a prior case upon which to base your evaluation.

      I’m not trying to make excuses for your lawyer, but I understand why he’s doing what he’s doing. If he tells you that he thinks the case is worth $25,000.00 and the most the defendants offer is $10,000.00, he’s pretty much guaranteed the case won’t settle. Then he either has to choose to drop the case or take it to trial, neither of which is a positive outcome, given the added cost of trial relative to the value of the case.

      The bottom line is, I don’t think your lawyer feels comfortable setting a value on your case just because scar cases are so subjective. Therefore, he just wants to get the most money he can from the defendants without having to go to trial. He has no idea how much he can get from the defendants until they make offers. So, he doesn’t want to give you a number until he’s sure it’s a number the defendants will pay.

      He doesn’t want to tell you that he doesn’t want to try your case (although I can say I’m 95% sure that’s the case). He doesn’t want to give you a value of your case that exceeds what he may be able to get from the defendants, because then he’d have to tell you that he doesn’t want to try your case should they not offer what he said the case is worth. So, he’s stalling until he gets some offers so he can give you a number he knows they’ll pay.

      I’m not really going to be overly critical of your lawyer for doing this. Lots of PI lawyers do this with lower valued cases. The only problem I have is that he’s not being completely honest with you. He should just tell you that he has no intention of trying of trying your case and that he’s just going to try to get as much as possible from the defendants. Some cases just aren’t worth enough to justify the cost of a trial. Most clients understand this when you explain the numbers to them.

      Obviously, all of this is just my opinion based on the facts presented.

  44. Melissa H. says:

    Everything you’ve stated makes perfect sense and I thank you for your speedy reply. Wish me luck!

  45. Julia says:

    Hello, I know someone that got hurt in work over 2 years ago. She had back surgery and her doctors put her at MMI she hired a worker comp lawyer and she had to go to two doctor for her lawyer and the defence IME she went to all of them now the defence wants her to go to another IME with a psychiatry doctor. Is this normal or should she be worried??She thought she would be settling by now. Thanks

    • fl_litig8r says:

      If she’s claiming a psychological injury (depression, PTSD, etc.) in addition to the back injury, a psychiatric IME is not unusual. These usually take longer than physical IMEs because they involve one or more written tests, like the MMPI. Make sure she knows how long the IME will be, in case it needs to be broken up into more than one day (I’ve known some to take 8 hours with all the written testing) to accommodate her back injury.

      If she is not claiming a psychological injury, then there is cause for concern, as this indicates that the psychiatric IME is primarily testing for malingering. That wouldn’t bode well for settlement purposes, as it indicates that the employer/insurer thinks she’s exaggerating symptoms.

  46. cendy says:

    I no someone right know that one a settlement of 75.000.00 into the lawers bank .the lawer would only give him 7.500 loan from that siad he was waiting on a paper to clear before he could get the rest of his money.and already told him 4 times on a set date he would be getting it and still has not got anything Can the do this to him.

    • fl_litig8r says:

      There are two main reasons why a lawyer wouldn’t be able to disburse a settlement check he’s received. First, it hasn’t cleared yet (which could take up to 10 business days). Second, there are outstanding medical or insurance liens that need to be calculated and paid from it. If it’s a lien issue holding up the works, often the lawyer can hold back a sufficient amount to satisfy any liens and disburse the rest to the client. Once the liens are finalized, if there’s any money left over, he would pay the client the balance. See this article and its comments for a more thorough discussion of this issue.

      Note that until the lawyer can disburse money to the client, he can’t pay himself either (the money just sits in the trust account), so he has every incentive to try to settle any issues which would prevent him from paying the client as quickly as possible.

  47. Nick says:

    Hi I was a passenger in a accident that involved no other cars in 2010 I Broke my shoulder and lost a lot of movement in it. The driver was in his work vehicle. The case is now in the discovery phase i have had to answer questions for both the drivers attorney and the attorney of the insurance companies car i was in.

    The companies cars insurance has been paying my medical bills and lost wages since the date of the the accident in 2010. Since that time i was seeing different doctors, the last was a pain management and he released me to go back to work with a bunch of restrictions but I work in a steel factory. Luckily my employer has been very understanding and have let me continue to work and have found other things that i can do. But i am working less then half the hours i was before now they have cut off my health benefits because i am not a full time employee. The car insurance is continuing to pay the difference of what i was making before the accident. But now i have to pay out of pocket to keep my health insurance should they be liable to pay that? And what about work retraining since i am not going to be able to do the job i was doing before and its starting to seem like my employer is getting tired of catering to me since they just cut my benefits?

    Also since the accident I was not happy with what 2 other doctors and a physical therapist said when they told me i was at MMI. So i got a 3rd opinion and this doctor wants to do another surgery. I am at about 60%, this doctor says he can get me at 90%. Now i know its obvious that i should go ahead with the surgery but i already submitted my answers from the 2 different attorneys?

    I have read all of these post and i have yet to see where a insurance company was paying lost wages and hospital bills before the case was settled. Since they are doing this are they admitting they are liable? At first they were saying the driver of the car is but they still continue to pay, if for some odd reason it goes to trial and they say their not would they have to be reimbursed?

    • fl_litig8r says:

      Clearly, the driver of the vehicle is liable as there were no others involved. So, the issue for his employer’s insurer is not one of liability, but of coverage. This would depend on the language of the policy and the answers to these questions:

      • Is the driver an insured under the employer’s policy?
      • Was the driver acting in the course and scope of his employment at the time of the accident, such that the employer would be liable for his actions? If the employee is not directly covered under the policy, but the employer is, coverage would hinge on the employer’s liability.
      • Is the employer the owner of the vehicle? In some states, like my home state of Florida, the owner of a vehicle is liable for all damages caused by a driver who used the vehicle with the owner’s permission.

      A “yes” answer to any of these questions would almost certainly result in the employer’s insurer having to cover the accident. The driver’s own insurance company would also provide coverage. The issue would be whether one of the insurers was primary (pays first) or whether they would split the damages on a pro rata basis.

      As to whether the insurer has admitted liability by paying your medical costs, technically it hasn’t. However, while its not uncommon for an insurer that disputes coverage to pay for the legal defense of the putative insured, I’ve never heard of a case where the insurer went ahead and paid damages while disputing coverage. I am unaware of any mechanism (absent fraud) by which the insurer could try to recoup its money from you should you lose at trial — which is why I’m surprised that the insurer is paying your medicals and wage loss if it still maintains a coverage defense. If you’ve already had two surgeries, the amount the insurer has paid out so far would exceed most no-fault type coverages available, so it does seem like it’s paying from its liability coverage. Perhaps it just changed its mind as to the viability of its coverage defense.

      With respect to your third surgery, you need to do what’s best for you medically. Having your first two doctors opposed to it doesn’t help matters (this goes to the reasonableness of the treatment), but it’s not fatal to you recovering that medical cost (especially if the surgery works). Don’t be surprised if the insurer doesn’t voluntarily pay this bill, in which case you’ll have to force it.

      Your health insurance issue is a good question. Yes, they are liable for the additional cost you have incurred in having to obtain your own coverage. One possible exception to this would be from a mitigation defense — if there were other jobs that fit your medical restrictions whose overall compensation package (wages and benefits) exceeds that of your current employer, possibly including full medical, then the defendant could argue that you should have taken one of those jobs instead of staying with your current employer. The burden of proving the availability of such jobs would fall on the defendant.

  48. willard gross says:

    i was sue in 2005 neather party wants go court they ask nothing in 7 years an i heard nothing can i ask for dismissal after seven years or is there a time limit on going to trail i live in tn. county of scott i have property they got lien on it an i need to move the property

    • fl_litig8r says:

      Most courts will dismiss a case for failure to prosecute if there’s been no “record activity” (documents filed with the court) for a certain period of time, often one year. Some courts will dismiss the case on their own and some require the defendant to file a motion asking for it.

      If there has been record activity in the case, then technically there is no time limit on when it has to go to trial, as long as the original lawsuit was filed within the statute of limitations.

  49. davanna says:

    my husband was granted a lawsuit 3 months ago the attorney who has the funds says the he will send out payments little by little because the attorney says he has not gotten a letter from medicare in the state of Oklahoma even though we have contacted medicare and was told that there is not money owed for any reason but the attoney says that in the state of oklahoma the have to wait for a release from the tribal owners of medicare thats owned by the indian tribes in oklahoma to respond to him before he can release all of the money thats suppose to given to my husband and was settle by the courts is an attorney allow you disburst money that is rightful yours and does medicare indian tribe have to send a letter back to the attorney even though the lawsuit had nothing to do with insurance it had to do with a law suit against a hospital that his mother was in and was raped by another mentally ill patient his mom has since past away but he was money was granted to him

    • fl_litig8r says:

      Wow, that’s a mouth full. Your attorney is doing the right thing in giving your husband a partial distribution of the settlement while holding back enough to cover the medicare lien. I actually suggest this approach in this article. After the lawyer settles with medicare, he will send your husband any amounts left over.

      If your husband’s claim had been a wrongful death suit, he wouldn’t have to pay back medicare for the treatment his mother received. However, wrongful death suits are only brought for accidents which caused the death of the injured party. When someone dies from a cause unrelated to the incident for which you’re suing, the lawsuit that person had is brought not as a wrongful death lawsuit, but as a survival suit (or “survivor” suit, in some states). In a wrongful death suit, the family members of the deceased sue for their own damages — their own pain and suffering and economic loss from losing the deceased. In a survival suit, a family member steps into the shoes of the deceased and sues for the damages the deceased person suffered before she died.

      So, because your husband sued for the damages his mother would have been entitled to if she had lived to sue on her own, he’s also responsible for paying the liens she owes from the proceeds, just as she would have been.

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