A personal injury case – step by step

At our first meeting with you, we will discuss the following:

• How you were injured
• If a person or company’s negligence caused your injuries
• The facts of your car crash, dog attack, or other incident in which you were injured
• The extent and nature of your injuries
• Insurance coverage that may be available to you
• Your medical treatment and bills
• Your legal options
• Legal fees, costs, and the expected time frame to handle your case

If you choose to hire our firm to handle your case, we get to work quickly to gather all the information we need to be your advocate in settlement negotiations or at a trial in court, if necessary.

Once we open your file, we notify the relevant insurance companies that we represent you, and then we begin collecting information critical to your case, which may include the following:

Crash Report

Under Virginia law, a law enforcement officer who investigates a vehicle accident must file a crash report with the Department of Motor Vehicles when a person is injured or killed, or property damage is more than $1,500. We request a copy of the crash report and all associated diagrams, notes, and photographs, as soon as a file is opened. Although the report and diagram are inadmissible at trial, they contain vital information that helps us prepare for settlement negotiations or trial.

Insurance Information

The “value” of a case, or how much money you can receive in a settlement or trial, is usually determined by how much insurance coverage is available. Our first job is to obtain the “declarations page” of your insurance policy to see if you have uninsured/underinsured motorist coverage. If you do, we determine how much is available to you. Your policy may also have “medical payments coverage.”

It’s also helpful for our firm to find out how much insurance coverage the defendant driver has on his policy. Fortunately, Virginia law gives us the authority to obtain the other driver’s insurance information if your medical bills and lost wages are more than $12,500. If your medical bills and lost wages aren’t that high, we can obtain the insurance information for the other driver if we file a lawsuit.

If a company or government entity may have contributed in some way to your injury such as a car manufacturer, business where the accident happened, or county or state responsible for the roads, we obtain their insurance information as well?

Witness Statements

Witnesses can be crucial to the success of your case, and it’s important to gather witness information while memories are still fresh. Helpful witnesses include you, your passengers, people identified in the crash report or law enforcement files, names from the investigating officer’s notes, and family and friends familiar with your injuries and your recovery. If needed, our law firm will hire an investigator to track down vital witnesses and report the information they provide.

Visual of the Accident Scene

In many cases, we need to visit the accident scene as early as possible to determine all the physical factors that may have affected the collision, including sight lines, topography, relevant street signs or absence of signs, speed limits, traffic signals, weather conditions, and other factors. It is often helpful for us to visit the scene with you, our client, to better understand how the collision happened.

Photos of the Accident Scene

Photographs are critical to telling the story of a car crash. It’s important to take photos of the crash scene from all angles and include shots of skid marks, damage to the roadway, and signs or foliage. The accident report will often include helpful photographs taken by the investigating officer.

Photos of the Vehicles

Photos of the vehicles involved in the accident are often vital in explaining the cause of the accident, the speed of the vehicles, and the force of the impact of the crash. Paint marks and dents provide clues to each vehicle’s direction of travel and the points of impact during the collision. We obtain photographs from our clients, the insurance companies, from the opposing side in litigation, and in some cases, with the law enforcement crash report.

Videos

Like photographs, videos can be powerful evidence that supports your case. With advancing technology, some vehicles are equipped with video cameras that operate at all times and can capture a crash in real time.

In other situations, we are able to locate surveillance video from a nearby business or a home that captures the event in which you were injured. We also may request a law enforcement officer’s body camera footage, which may provide evidence of the at-fault driver’s condition after a wreck, particularly in cases in which the driver is suspected of being drunk or on legal or illegal drugs.

Photos of Medical Treatment and Injuries

“A picture is worth a thousand words”— that’s a fact. A medical expert or ER doctor can testify for an hour about your treatment and medical condition following your wreck. However, we’ve seen that photos of heavy bruising on your chest and neck from the seat belt, a laceration on your knee, and stitches closing the wound on your arm have far more impact on a judge and jury at a trial than two hours of dry testimony.

We collect any photos you have taken of your injuries and medical treatment, and if necessary, we ask your permission to take additional photos of your scars, abrasions, bruising, braces, casts, and other representations of the injuries you’ve suffered.

Medical Records and Bills

Medical records and medical bills are the primary evidence of your injuries and costs in an automobile negligence case.

We work with you to identify all known medical providers, which could include ambulance services; emergency room staff or diagnostic providers (X-rays, CT scans, MRI); your primary care physician; specialists such as orthopedic surgeons, plastic surgeons, and neurologists; and physical therapists.

Injury victims are entitled to recover the full cost of their treatment in a personal injury case, even if their health insurance covered all or part of their costs. As a result, our firm requests records with the total billing amount for the medical treatment received by you.

Lost Wage Records

Car wreck injuries often result in hospitalization and lengthy from work. Even a few days of missed work can have a major financial impact on you and your family, particularly if you have no paid sick leave at your workplace.

You don’t deserve to lose income due to the negligence of another driver. With your help, we collect your pay stubs and sick leave records to establish your lost wages and ensure that you are fully reimbursed for the money you lost.

Media Reports and Photographs

If a car accident was reported by the media, we print a copy of the articles and photographs and collect any video coverage from news and TV websites. Media reports may contain leads for additional witnesses to the collision, reveal additional evidence about the accident scene, and help us identify other potential defendants and sources of insurance coverage.

Weather Reports

If weather conditions are at issue in your case, we obtain relevant records from the U.S. Weather Bureau. Rain, snow, ice, sun glare, or fog may have had a significant impact on your accident; so it’s helpful to obtain official reports on the weather conditions at the time of your wreck.

Other Agency Reports

In certain personal injury cases, other government agencies may also have investigated the accident. We determine whether any agency, from the Interstate Commerce Commission or Department of Transportation to OSHA (Occupational Safety and Health Administration), is involved, and we obtain a copy of their reports.

Law Enforcement Records

In addition to the crash report, other law enforcement and government reports may be related to a personal injury case. We request all relevant official documents that may apply to your case, whether an autopsy report from the medical examiner, toxicology results from the Virginia Department of Forensic Science, hospital records, blood alcohol testing, or more.

Court Records

In most cases we handle, the negligent driver is issued a traffic ticket. In some cases, he is charged with a criminal offense for causing the wreck that injured you. If the negligent driver pleads guilty or nolo contendre (no contest) to the traffic ticket or criminal offense (such as driving under the influence—DUI), this plea is admissible as evidence of negligence in a personal injury civil trial.

We request a certified copy of the court order reflecting such a plea to use in negotiations and, if necessary, at trial.

In some cases, the driver who caused the accident and your injuries has a prior criminal record that would affect her credibility at trial. Prior convictions involving lying, cheating, or stealing can be introduced at trial to damage the credibility of the other driver, and we obtain certified copies of the other driver’s convictions for use in negotiation and trial.

Your No. 1 job while your case is pending is to focus on receiving proper medical treatment and getting better. While our law firm is investigating your case and gathering information, you can attend your medical appointments, undergo any needed testing and therapy, and get all the help you need to heal.

We encourage you to keep a journal during this stage of the case to document your treatment and how your injuries are affecting you at home, at work, during your activities (sports, hobbies, fitness routines), and at school if you’re a student.

Make sure you attend all your doctor’s appointments and physical therapy sessions. If your treatment isn’t documented in medical records, and you aren’t consistent in attending your treatment, then, as far as the insurance company is concerned, you weren’t hurt.

It is also very important to keep good records of your treatment and provide us with any paperwork you receive about your case such as medical records, bills, prescription receipts, and insurance explanation of benefits (EOB) forms. We love paper! It’s our job to review and organize all the documents you provide and use them to get you the best case result possible.

Keep us updated about your health, your medical treatment, upcoming surgeries, and any other important developments in your life.

We will keep track of all of your medical providers and request all of your medical records and bills once you have completed your treatment and reached “maximum medical improvement.”

Your primary goals are to focus on your treatment, recover from your injuries, and reach “maximum medical improvement” (MMI). You must complete these before we can safely move forward with settlement negotiations with relevant insurance company or companies.

MMI is the point when your treating physicians determine that you have fully recovered from your car wreck. MMI may not necessarily mean that you have returned to your previous level of health, but it’s the doctor’s way of saying, “This is as good as it’s going to get,” as far as your recovery is concerned.

Following your MMI, our record collection process can take 30-90 days depending on the efficiency and responsiveness of your health care providers.

The initial effort to settle your case begins with our detailed letter to the at-fault party’s insurance company, accompanied by supporting documents and photographs, in what we refer to as a “demand package.”

We “demand” a settlement amount on your behalf. The demand package outlines the negligence of the other driver, and provides an overview of your damages – your pain and suffering, inconvenience, past and future medical bills, impact on your daily life, and your lost wages. With our letter, we include all your medical records and bills, the accident report, photographs of the accident, and photos of your injuries and treatment.

The insurance company reviews our demand package and responds with an offer of settlement usually within 30 to 60 days. The first offer is generally very low, and we have to continue to negotiate until we reach a settlement that fairly compensates you for your injuries and other damages.

What factors determine the settlement value of your case? This is a difficult question to answer at the beginning of a case, but the value of your claim will become clearer once we have completed our investigation and gathered all your medical records and bills and lost wages information. Generally, the value of your personal injury case depends on the severity of your injuries, the facts of your case, the amount of insurance coverage available, and the strength of our claim that the other driver or individual was at fault.

The value of your case comes down to what “damages” you have suffered as a result of the negligence of the at-fault party. Damages include:

• Past medical bills
• Future medical bills
• Lost wages
• Loss of earning capacity
• Pain and suffering
• Inconvenience
• Personal property damage in your car (such as replacement of glasses or injuries to a pet)
• Cost of prescriptions and medical devices

We will discuss our estimate of the case value with you, and we will negotiate with the defendant’s insurance company to get you the best possible result. We will not agree to any settlement amount without your agreement, and we will keep you informed about negotiations every step of the way.

After discussing with you the highest settlement offer made by the insurance company, and giving you our opinion about the value of your case, we will offer our recommendation about filing a lawsuit against the other driver. If we believe the insurance company is not offering a settlement amount that is a fair value of your case, we will recommend filing a lawsuit.

However, we will only file a lawsuit with your permission after you have had a full opportunity to discuss our recommendation and ask questions about the process of filing a lawsuit. But keep in mind that if we don’t file a lawsuit, you will likely have to accept the insurance company’s offer.

The advantages of filing a lawsuit are that the insurance company must take your case seriously because of the risks presented by a lawsuit. They risk that a judge or jury could award you a higher sum of money than they are currently offering. They will have to hire and pay a lawyer to defend the driver they insure. They must pay litigation costs and spend more time and effort to deal with your case.

The net result is that it puts pressure on the insurance company to raise their offer to avoid the risks and costs of drawn-out litigation and perhaps a trial before a jury.

Where is the case filed?

In most cases, we file lawsuits in the county or city where the accident happened. However, we are permitted to file a lawsuit in the county or city where the defendant lives. We evaluate the best “venue,” or location, to file the lawsuit for your case based on our knowledge and experience concerning how typical judges and juries handle personal injury cases in those locations.

General District Court – or – Circuit Court?

Under Virginia law, we are permitted to file lawsuits in the General District Court for a maximum recovery of $25,000. For cases involving less serious injuries and lower total medical expenses, filing in the General District Court is the best and most efficient option in a personal injury case. Only a judge hears all cases in the General District Court. There is no option for a jury. However, the benefits of filing in the General District Court are that the process is much more streamlined, and we can get into court much more quickly.

In cases where the injuries are more serious and the total medical bills and lost wages are high, we file lawsuits in the Circuit Court, where the value of the case must be higher than $25,000. In almost all our cases, we will ask that a jury decide your case in the Circuit Court.

The challenges presented in Circuit Court are much higher litigation costs due to costly depositions, expert fees, and trial-related expenses. Circuit Court cases also take much longer to complete and generally go to trial within 1-2 years of filing a lawsuit.

A key point to remember is that even if we file a lawsuit on your behalf, we still have the ability to reach a fair settlement for you at any point before trial. In fact, in our experience, at least 8 out of 10 cases settle before trial as the pressure and risks of the trial become more intense as the trial approaches.

The justice system is designed to encourage pre-trial settlement of cases through the exchange of information before trial. Rather than “trial by ambush,” the law promotes the full disclosure of all evidence so that each side can accurately weigh the strengths and weaknesses of a case and make an informed decision about the terms of a possible settlement.

How does this pre-trial exchange of information – a process called “discovery” in the law – proceed?

General District Court

If your case is filed in the General District Court, where the maximum recovery is capped at $25,000, the pre-trial discovery process is streamlined. In a personal injury case, you are the “Plaintiff,” and the person or business that negligently injured you is the “Defendant.”

The General District Court generally requires the Plaintiff, through an attorney, to file a “Bill of Particulars,” which is a brief statement outlining the case. The Defendant is required to file a “Grounds of Defense,” responding to the Plaintiff’s allegations and summary of the case.

While the trial date is pending, each side is permitted to subpoena relevant witnesses and subpoena important documents, such as medical records and bills. Our firm will already have obtained your records and bills during our investigation, but the lawyers for the defendant will often subpoena them to obtain their own copies.

To ensure that we can offer your medical bills and records into evidence at your trial, we obtain “affidavits” – legal statements certifying authenticity – from your medical providers. These affidavits establish that your records and bills are accurate and true copies of the original documents.

From the date of filing your lawsuit to the date of trial, the process usually takes approximately 4-6 months. Many General District Court cases settle once the insurance company has obtained all the information it needs to evaluate the case and weigh the risk of going to trial. However, some insurance companies take a firm position, make low ball offers, and essentially dare us to go to trial. We’re happy to take on that challenge for our clients and, believe or not, we enjoy going to court if it’s necessary to obtain true justice for you.

Circuit Court

For cases where the medical bills and lost wages are high and the injuries are more severe, it is necessary to file in the Circuit Court to obtain fair compensation for you.

With that choice comes a more complex pre-trial discovery process. When there’s even more at stake for both sides, the law encourages an even more thorough and exhaustive exchange of information.

Here are the key methods used in the Circuit Court discovery phase:

Interrogatories

Derived from the word “interrogate,” it can sound scary, but it’s not. Interrogatories are a series of written questions that each side has to answer under oath. You will be asked to provide basic background information, a description of the car crash or other incident, a summary of your current and prior medical treatment, a description of how your injuries have affected you, and your lost wages information. Don’t worry: we also submit a full set of interrogatories to the defendant to answer.

Requests for the Production of Documents

Each side is permitted to request that the other produce documents important to the case. You will be asked to produce medical records and bills, lost wages documents, photographs, any physical evidence related to the claim and other relevant documents or objects.

Requests for Admission

A powerful pre-trial discovery tool is Requests for Admissions (RFA). An RFA poses a series of statements to the other party who must admit, deny, or state they have insufficient information to respond to the statement. Submitting RFAs helps each side narrow down the issues in a case. If a defendant admits they were negligent and caused the car crash, it is an admission that can be presented at trial, and it eliminates that issue as one we would normally have to prove during trial.

Depositions

A deposition is a meeting between the attorneys and a party or witness to a case, with a court reporter present. In a typical case, each party to a lawsuit – the plaintiff and defendant – undergo a deposition.

The attorney for the plaintiff questions the defendant, under oath, about all information important to the case. Likewise, the attorney for the defendant questions the plaintiff, under oath, about her background, the facts of the car wreck, her medical treatment, employment and lost wages, the effects the injuries on her daily life, her pre-wreck health condition, and other issues important to the case. The deposition is recorded and typed by a court reporter and put into a transcript, which is a written document accurately stating the questions and answers of the lawyers and the parties to the case.

It may also be necessary to take the depositions of your treating doctors, expert witnesses supporting your case, and defense expert witnesses, as well as law enforcement officers, eyewitnesses, and family members.

Subpoenas

Each side in a legal case is permitted to issue subpoenas for documents or the production of objects (examples: cell phone, videotape) which is called a subpoena duces tecum (SDT).

An SDT can help us fill in the gaps and obtain any missing documents that we weren’t able to obtain during our investigation of your case before filing a lawsuit.

Defense attorneys often use SDTs to obtain copies of your medical and employment information to assess the validity of your medical treatment and lost wages claims.

Medical Examinations

Virginia law authorizes a party to a lawsuit to have the other party undergo a mental or physical health examination. In most cases, only the health of the plaintiff is at issue. The legal term for the process is an “independent medical examination,” but we generally refer to them as DMEs, or “defense medical examination,” because the defendant’s insurance company selects and pays for the doctor to examine you.

Following the examination, the doctor performing the DME prepares a written report summarizing his examination of you and his review of your current and past medical records.

After the completion of the pre-trial discovery stage, both sides of the case have a clearer picture of the strengths and weaknesses of their respective cases, and the possibility of reaching a settlement becomes more likely.

To encourage settlement, the court where a case is filed often requires the plaintiff and defendant to participate in a settlement conference with a retired judge. The process is also sometimes referred to as a mediation.

The benefit of this process is that the retired judge is an objective observer with extensive experience in serving as a judge in personal injury cases. The judge possesses a track records and base of knowledge to be able to state with authority to the parties in the lawsuit what his or her assessment of the true value of the case.

Lawyers for each client submit a package of documents to the settlement conference judge before the mediation date. In some cases, the lawyers and settlement judge will have a conference call to hash out the key issues in the case before the settlement conference.

On the date of the settlement conference, all parties, lawyers, an insurance adjuster with the authority to settle the case, and the settlement judge meet together. The judge makes a brief statement about her experience and the pros and cons of settling the case versus going to trial. Next, each side makes an opening statement, summarizing their case. Then, the parties separate into two rooms.

The plaintiff makes a demand for a specific amount of money to settle the case, and the defendant responds with their proposed settlement amount. The settlement judge confers with each side and conveys the competing settlement amount numbers throughout the entire process.

The process can take 2-3 hours, and in some cases, up to a full day. In some complex cases, negotiations have extended off and on over the course of several weeks.

In roughly 2 out of 3 cases, the settlement conference results in a settlement. The presence of an objective and experienced judge exposes weaknesses in both sides’ cases and often leads to compromise and resolution of the dispute.

However, sometimes insurance companies can and do “dig in” at a low number, and no amount of persuasion by the settlement judge increases the amount to a reasonable number. If this happens, the only choice is to walk away and go to trial unless you, the plaintiff, are ready to get the case over and accept a low value offer. Our job is to give you our best assessment of the value of your case, but the choice to settle is ultimately up to you, our client.

If all efforts at settlement fail, the next step is to go to trial. A trial is not like what you see on TV or in movies. It is typically a lengthy, stressful, and often tedious experience for plaintiffs, and it is unpredictable. However, we will make sure that you are well-prepared, and that you are ready to handle the challenges of the trial. The goal is always to achieve a successful result for you.

What has to be proved at trial?

The key points that we must prove at trial is that the other driver was negligent and that his negligence injured you.

Negligence is the failure to use reasonable care to prevent harm to others. A person is negligent if he does something that a reasonably careful person would not do in the same situation, or if she fails to do something that a reasonably careful person would do in the same situation.

In an auto accident case, we must prove that the other driver’s negligence caused the car wreck that injured you. Some common examples of negligent driving include following too closely, failing to yield the right of way, driving drunk or under the influence of drugs, driving at an excessive speed, or failing to keep a proper lookout.

After we have proved that the other driver was negligent, we must then prove how his negligence caused you to suffer injuries and other harm, called “damages” in the law. Damages include past medical bills, future medical bills, lost wages, loss of earning capacity, pain and suffering, mental anguish, inconvenience, personal property damage in your car (such as replacement of glasses or injuries to a pet), and the cost of prescriptions and medical devices.

General District Court

A General District Court (GDC) trial is held before a judge, not a jury. Often, the only witnesses at the trial are the plaintiff, the defendant, in some cases, the investigating law enforcement officer, eyewitnesses, and your family members to testify about your injuries.

We present your medical bills and records, evidence of lost wages, and photographs of the vehicles, crash scene, and your injuries.

A GDC trial generally takes from 45 minutes to more than 1 hour if the issues are complex and the liability of the defendant is in dispute.

Circuit Court

A trial in the Circuit Court is held before a jury of seven members of the community in which the case is tried. A judge presides over the case and makes rulings regarding any disputes between the parties about the evidence and witness testimony.

The first step in a Circuit Court trial is the jury selection process called “voire dire,” meaning “speak the truth.” The lawyer for each party speaks to a group of prospective jurors to determine if they are qualified to serve as jurors and whether they hold any biases or pre-conceived beliefs that would prevent them from serving as a fair juror.

After a jury is selected, lawyers for the plaintiff and defendant present opening statements to the jury, outlining the themes of their case and evidence they expect to present at trial.

Following opening statements, the plaintiff’s attorney bears the burden of proof and goes first. We present the testimony of you, your treating doctors, and your expert medical witnesses to summarize the facts of the crash, how the crash happened, and the injuries suffered by you. Our medical witnesses testify about how the crash caused the injuries suffered by our you, the symptoms and limitations suffered by you, and the future medical costs and treatment, if any, needed by you.

We may also call law enforcement witnesses to describe their investigation of the crash, your family members to testify about the impact the crash and injuries have had on you, and your employer to summarize the wages lost due to the wreck, and the impact the injuries have had on your job. After each of your witnesses testify, the defense lawyer has the opportunity to cross-examine each witness in an effort to expose potential weaknesses in their testimony.

After our case is complete, the defense may choose to call the defendant (if the issue of who is at fault is in dispute), law enforcement and eyewitnesses, and most importantly, expert medical witnesses who have examined you or reviewed your medical records. The defense medical experts typically question the severity of your injury, the length and necessity of your medical treatment and will point to any pre-accident health conditions as the real reason for your symptoms and pain. Like the defense, we are permitted to cross-examine all of the defendant’s witnesses.

Following the defendant’s case, we are permitted in the “rebuttal” phase of trial to re-call our witnesses or present new evidence that responds to and rebuts the defendant’s case.

Next, the Circuit Court judge instructs the jury on the law that they are required to follow as they deliberate and decide whether the defendant was negligent, whether that negligence injured you, and what damages and harm was suffered by you.

After the judge instructs the jury, each attorney delivers a closing argument to the jury summarizing the evidence presented during the trial and arguing for a specific result they would like the jury to reach during their deliberations. We urge the jury to find that the defendant was negligent and request a specific amount of money that we would like them to award to you to make you whole from the harm suffered.

Because the plaintiff carries the burden of proof, we deliver our closing argument first, followed by the defendant. Fortunately, we are given “the last word” because we have the opportunity to respond to the defendant’s closing argument to close out the case before it’s placed in the jury’s hands.

Jury deliberations are unpredictable. A jury may breeze through the instructions and make a quick decision within an hour. Other jury deliberations may drag on for hours as jurors consider the evidence and debate the result of the case. Eventually, the jury usually reaches a unanimous verdict and delivers that result in open court before both parties and their lawyers. If a jury can’t reach a verdict, the judge will declare a mistrial, and a new trial will be ordered.

If either side of the case is not satisfied with the result and believes there were improper rulings by the court, they have the right to appeal their case. An appeal is a complex process that can take another year or so to resolve.

After the long wait and intense preparation, our single goal and hope is that the jury will deliver justice for you, our client.

If your case settles through negotiations, or you are awarded money through a trial verdict, the insurance company for the defendant will issue a check in the amount of your settlement, or verdict.

If you settled the case, the insurance company will require you to sign a “release of liability.” The release states that in exchange for the amount of money the insurance agrees to pay you on behalf of the defendant, you agree not to sue the defendant or the insurance company. In other words, we will pay you X amount of money in exchange for your agreement not to sue us in the future.

If you win compensation at trial, no release of liability is signed.

To close out your case and issue you your check, one of our critical jobs is to resolve all legal claims and liens on your settlement funds. We check all your outstanding medical bill balances and determine whether there is a “subrogation” lien on your funds.

Subrogation is the process in which a health insurer who has paid your medical bills is entitled to be reimbursed from your settlement funds. Subrogation was established under the theory that if a third party (the defendant) causes you harm that requires medical treatment, and that third party compensates you for the harm you suffered, the health insurance company that paid for your care is entitled to recover some of that money.

The good news is that not every health insurance company is entitled to subrogation. And even if the company is permitted to subrogate, the amount claimed is usually not the full amount of your medical bills. We communicate with your health insurance company to ensure that all legal claims for subrogation are resolved properly.

After we verify any outstanding medical bills, liens by medical providers and subrogation claims by health insurance companies or government health care (Tricare/Medicaid/Medicare), we prepare a settlement statement for your review summarizing our fees, attorney costs, liens, bills paid, and subrogation amount, if any. We present you with your check, settlement statement, and all documents associated with your settlement or trial verdict.

We then close your case, and we hope you will feel that justice has been served and that you have been fairly compensated for the harm caused by the negligence of another person or business.