What Exactly is Involved in the Litigation Process?

What Exactly is Involved in the Litigation Process?

Over the course of my career, many people have asked me what area of law I practice in, and I usually respond by stating “civil litigation.”  Then I am typically asked, “What do you mean by civil litigation?”  The civil in “civil litigation” refers to the form of law, and generally speaking, litigation is the process that occurs after a lawsuit is filed and the parties are attempting to resolve a dispute, with the potential for having a trial to decide the issues for the parties.  Many attorneys, including myself, emphasize handling litigation matters as part of their practice.  While every case has different facts and many contain different legal issues, there are some similarities among all litigation matters that you should be aware of. This awareness will make the process easier to understand and can make it less stressful for you should you ever find yourself in a lawsuit.

Most types of litigated matters follow a similar process; however, I will use a personal injury matter as an example for how things typically proceed.  This process takes place before the lawsuit is filed, up through a trial and potential appeal and can take several years of time.  The following sequence of events is typical for a claim by someone who sustains personal injuries as a result of someone else’s negligence:

1.)  First, the client meets with the attorney to discuss injuries and who is at fault for causing the accident or incident.

2.)  Second, the attorney investigates the facts relating to liability and damages, gathers evidence and speaks with potential witnesses.

3.)  From that point, the client treats with doctors or other health care providers until they reach the end of their medical treatment, and the attorney gathers all relevant medical records, bills, and other evidence of damages which have been caused by the negligent party.  This process may take quite some time, as we do not want to try to settle cases before the client has reached the end of their medical treatment, because once a case is settled, no claim for that same incident can be pursued again.

4.)  After that, the attorney and client discuss the value of the claim, and the attorney sends out a demand to the insurance company, along with all supporting documentation, to attempt to settle the claim for a fair and reasonable value.

 5.)  Then, if the insurance company is unreasonable with its offer, the attorney will file a lawsuit against the negligent party and his or her insurance company, and the case will proceed in a circuit court in the county in which the lawsuit is filed.

6.)  Next Discovery takes place.  The process of discovery is when both parties learn about the relevant facts and strengths and weaknesses in each other’s cases.  The parties each serve written interrogatories (questions) to the opposing side; the parties also request documents from the opposing side, and it often involves the insurance company seeking authorizations to be signed by the injured party so that the insurance company can obtain all pertinent medical records and bills.  The parties in the lawsuit also take depositions of the parties, as well as other important witnesses, including doctors or health care professionals and of other experts who have been hired.  A deposition involves the attorneys asking the witness numerous questions, sometimes for several hours, where the witness must answer the questions under oath and a court reporter transcribes all the questions and answers.

7.)  Once most of the discovery is completed by both sides, each side evaluates their respective cases to determine whether they are in a position to try to settle the case.  The parties will then either pursue Mediation, or the Court will usually order mediation so that the parties have to attempt to settle the case without having to proceed with a trial.  Mediation is a process that is not binding, and no one can be forced to settle unless they agree to the settlement terms.  Mediation usually involves the parties jointly hiring a neutral attorney or a retired judge to assist the parties in taking a closer look at the strengths and weaknesses of their cases.  The mediator will go back and forth for several hours between separate rooms where the respective parties are sitting with their attorneys.  The mediator tries to persuade each party to be reasonable in light of the risk and expense of going forward and having a trial, and hopefully the parties will agree on a settlement.

8.)  If mediation fails and the parties do not settle, then the parties will have a trial.  The trial can be only to the judge, or either party can request a trial to a jury, which usually involves a 12-person jury.

9.)  During the trial, the parties’ attorneys, with the assistance of their clients, will pick the jury through a process called voir dire.  The attorneys will give opening statements, call witnesses, and present documents and other evidence to support or defend their positions.  A jury trial can last from a half day to several weeks, depending on the complexity of the case and the number of witnesses each side intends to call.  The parties will then give closing arguments to the jury and try to persuade the jury to find in their favor.

10.)  The jury then goes from the courtroom back into a separate jury room to deliberate privately and to complete a questionnaire which is called a special verdict.  The answers the jury gives on a special verdict will determine who is at fault for the incident and the amount of damages that should be awarded to the injured party.  The process of jury deliberations can take less than an hour to more than several days, depending on the complexity of the case, the number of exhibits that it must consider, and the number of questions it must answer on the special verdict questionnaire.  The judge will then read the answers on the verdict to the parties once the jury has completed the questionnaire.

11.)  Finally, after the verdict if the losing party is required to pay damages, they can either pay it, try to negotiate for a lower amount, or appeal the case to the Wisconsin Court of Appeals.  If the losing party does not appeal and does not pay the judgment, then the winning party must attempt to enforce a judgment through collection procedures.

While it is best for the parties to attempt to resolve issues without having to file a lawsuit, the litigation process may be the only way a party can actually enforce their legal rights if the other side is not willing to cooperate or be reasonable in reaching a resolution to the dispute.  While attorneys try to work with their clients to persuade the other party to reach a resolution so as to avoid the risk and expense of litigation, being able to effectively litigate is one of the critical skills an experienced attorney must have in order to increase their client’s chance of having a successful outcome.  At Anderson O’Brien, our experienced litigation attorneys assist clients from the very beginning of a dispute through the entire litigation process, including any trials or appeals that may be necessary.

If the parties have a full understanding of this entire process, including the amount of time, risks, and expense involved, that should assist them in making well-reasoned decisions in determining what efforts they wish to take in attempting to resolve their dispute, or to file a lawsuit and go through the litigation process to enforce their legal rights.

 

Which Insurance Companies Do I Have to Talk to After an Auto Accident?

Which Insurance Companies Do I Have to Talk to After an Auto Accident?

Following an auto accident, victims are often bombarded with calls from claims personnel connected with various insurance companies asking how the accident happened and what injuries were sustained. Usually, there are three different insurance companies trying to get information: (1) the liability insurer for the at-fault driver, (2) your own auto insurance company and (3) your health insurance company.

The insurance company you have no obligation to speak to and who we recommend you do not speak to is the liability insurer for the at-fault driver. Almost without fail, soon after an accident, injured drivers will receive a call from a claims person from the responsible party’s insurance company. This claims person will likely be recording the conversation and will ask questions about how the accident occurred and what injuries were sustained; rarely is this to your benefit. Being only a few days out from the collision, the injured victim will not have the police crash report and investigation findings, will have only been discharged from urgent care or the ER and not had an opportunity to see their doctor or a specialist for their injuries. In other words, the injured victim usually does not know the full extent of their injuries or the details of the accident.

In spite of this information deficit, the at-fault insurance company will use this opportunity to lock you into how the collision occurred and what your injuries are all without the benefit and protection of counsel. This is a statement that may be used against you at future depositions and trial. Worse still, there are some insurance companies who use this early opportunity to pressure you into a accepting a settlement offer.

On the other hand, you do have a duty to communicate and cooperate with your own auto insurance and your health insurance company. Your insurance policies have specific terms and conditions that you must abide by, one of which is that the insured has a duty to cooperate and inform the insurance company about the loss (i.e. the collision and your injuries). If you choose to ignore your own insurance companies, you risk them not paying for medical treatment related to the collision and possibly risk your uninsured and underinsured motorist coverages should you need them. We are often told by our clients that one of the services they appreciate most is our office’s ability to force all insurance companies to run their questions, forms and requests through our office which we handle. This allows our clients to focus on the most important thing after an accident: getting better.

 

Understanding Your Auto and Home Insurance Policies Through Declarations Pages

Understanding Your Auto and Home Insurance Policies Through Declarations Pages

I have frequently talked about the importance of having adequate insurance coverage, particularly automobile and homeowner’s insurance. In the past, I have presented this topic at our firm sponsored seminars, written on the subject in my article Insurance Plays Critical Role and I have even created a video titled Importance of Having Adequate Auto Insurance.

However, determining whether you are adequately insured first requires a basic understanding of what is contained in your insurance policies and where you can locate critical information about your coverages.  While your complete insurance policy contains many pages of conditions, exclusions and endorsements, many of which are written such that they are difficult to understand, the first place you should look in your policy is the declarations pages.  The declarations pages consist of the first few pages of your policy which identify the specific automobile and homeowner’s coverages and the amounts of coverage.  Not all policies are the same for each individual, as you need to specifically pay premiums for each of the different components of coverage.  The primary categories of coverage that you typically will find in your insurance policy include the following:

Automobile Insurance Coverages

  • Bodily Injury Liability – Identifies how much coverage you have if you are responsible for causing injuries to someone else in an automobile collision.
  • Property Damage Liability – Identifies how much coverage you have if you are responsible for causing property damage to someone else in an automobile collision.
  • Medical Payment Coverage – Identifies the amount of coverage you have for injuries to you or your passengers in your vehicle sustained in an accident, regardless of who is at fault. This amount is usually $10,000.00 or less.
  • Comprehensive Insurance – Identifies coverage that helps pay to replace or repair your vehicle if it is stolen or damaged in an incident that does not involve a collision. This would include damage from fire, vandalism, or trees or hail falling on the vehicle.
  • Collision Coverage – Identifies the coverage to help pay to repair or replace your car if it is damaged in an accident with another vehicle or object.
  • Uninsured Motorist Coverage – Identifies how much coverage you have for bodily injuries you sustain in an accident as a result of the negligence of a driver who has no insurance.
  • Underinsured Motorist Coverage – Identifies how much coverage you have for injuries you sustain if you are struck by a negligent driver who has some insurance but inadequate amounts of insurance.

Homeowner’s Insurance Coverages

  • Dwelling Coverage – Identifies the amount of coverage for your actual home in the event you sustain damages due to a fire or weather event.
  • Personal Injury Liability – Identifies the amount of coverage you have if someone is injured on your property due to your negligence.
  • Personal Property Coverage – Identifies the amount of coverage you have for the actual contents of personal belongings in your home, such as furniture, appliances, etc. Your declarations page will also tell you whether or not you have replacement cost or actual cash value  Replacement cost coverage is better because then you can recover the amount it actually costs to replace the items that are damaged or lost.  Actual cash value only provides you with that amount of damages you sustained based upon the depreciated value of those items you lost.  For example, if you paid $1,000.00 for a couch that is now 20 years old, the actual cash value amount may be extremely low, such as $50.00.  However, if you had replacement cost coverage, you would be able to replace that $1,000.00 couch with a new one and you would receive the full amount for that replacement couch.  Replacement cost coverage does cost more in premium amount; however, as you can see, it is much better coverage.

Umbrella Endorsement Coverage

Umbrella endorsement coverage is extremely important and can apply to both automobile and homeowner’s coverages.  This is perhaps the most important coverage you can purchase.  For approximately $200.00 to $250.00 per year, you can add an additional $1 million or more of coverage to the following:

  • Automobile liability limits if you are at fault in an automobile collision;
  • Uninsured and underinsured motorist coverage if someone injures you in an automobile collision; and
  • Homeowner’s liability limits if you are negligent and someone is injured on your property.

In order to obtain an umbrella policy that covers all of the above, you need to specifically request this from your insurance agent.  Many companies will only sell policies that simply provide a liability umbrella policy which would add another million dollars in coverage to your liability coverage for home and auto.  However, it is extremely valuable to have the additional protection for your automobile, uninsured and underinsured motorist coverage, as well.  That is what you will need to specifically request when you speak with your insurance agent.  This would help protect you and provide additional benefits if you or others in your vehicle are injured in an automobile collision caused by someone who is either uninsured or underinsured.

If you are injured in an automobile collision or sustain significant property damage to your home or its contents, it is important for you to consult with an attorney to assist you in obtaining fair and reasonable compensation for your losses and to utilize your insurance coverage to the fullest extent.  You should review your declarations pages with your insurance agent and discuss whether or not there is a need to increase your insurance coverages.  Simply because an agent says that you have “full coverage” does not mean that you have enough insurance to cover the typical losses that our law firm sees on a daily basis.

 

Using a Special Needs Trust to Ensure Your Settlement Does Not Affect Public Benefits

Using a Special Needs Trust to Ensure Your Settlement Does Not Affect Public Benefits

In Wisconsin, Medicaid (sometimes also called Medical Assistance) covers 1 in 9 adults and 1 in 3 children; in fact, 16% of the Wisconsin population gets its health care coverage through Medicaid.  Unlike the similar sounding Medicare, Medicaid is a means tested, needs-based health care coverage program, which means there are various income and asset limits that determine a person’s, or his/her family’s, eligibility.

By virtue of being a means tested program, Medicaid eligibility can be affected by receipt of funds, such as a personal injury settlement, if proper steps are not taken.  For example, to qualify for Medicaid, a single person can have no more than $2,000 in total countable assets.  If that Medicaid recipient receives a personal injury settlement of $25,000, he or she is going to be above the asset limit and at risk to lose Medicaid coverage.  Considering the exorbitant cost of medical procedures and medications, the loss of Medicaid coverage, or any needs-based benefits, can be devastating.

No injury victim should face the choice of being fully and fairly compensated for his or her injuries versus keeping his or her health care coverage.  Such a harsh outcome can be avoided by transferring the settlement funds to a properly drafted “special needs trust.”  Under normal rules, if a Medicaid recipient gives away or transfers assets to someone else, or to a trust, this results in disqualification from Medicaid (a penalty period).  A special needs trust is a type of trust that is specifically allowed under the Medicaid rules as an exception to the asset transfer rule.  A Medicaid recipient can transfer assets to a special needs trust without disqualification, and the recipient will no longer be over the asset limit.  Although the injury victim no longer has access to the funds, the trustee of the special needs trust can make distributions for his or her benefit, and there will be no loss of public benefits.

For example, our hypothetical accident victim, Courtney, receives a $25,000 settlement but is on Medicaid and Social Security Income (SSI), which are public benefits with asset limits.  Courtney wants to save this money for a car (a non-countable asset) or other items but is not sure what she would like to purchase.  If she is going to stay on public benefits, she only has ten days to report that she has received the money, and then will receive a notice that her benefits will be terminated.  Instead, Courtney’s attorney creates a special needs trust for Courtney, naming her mother as the trustee.  Courtney transfers the $25,000 to the trust without any disqualification for public benefits.  Later, Courtney decides she wants to buy a car with the settlement proceeds.  The car is bought and paid for by the special needs trust; the funds to buy the car come directly from the special needs trust, not Courtney.  Courtney gets her car and continues to receive Medicaid and SSI.

It is important to remember that Medicaid and SSI are just a couple examples of means tested/needs-based public benefits that could be affected by receipt of personal injury settlement funds.  This all serves to highlight the risk of going it alone following an accident or injury, as well as the need to hire a skilled attorney.  To be sure, when the insurance adjuster is pressuring you to settle your claim, the insurance company is not going to care whether the settlement will cause you to lose your public benefits.

 

What Do I Do Now That I Have Been in a Motor Vehicle Accident?

What Do I Do Now That I Have Been in a Motor Vehicle Accident?

When you head out on the road, a motor vehicle accident is the last thing you want to happen. However, if you fall victim to a motor vehicle accident on account of another driver’s negligence, you do not want to do anything to jeopardize receiving full compensation for your injuries and damages.

The first thing you want to do is address the immediate medical needs of yourself and others. If you, a friend or family member are able, get the names and contact information from potential witnesses and take photographs of the scene and vehicle damage. Responding officers will likely want statements. Following the incident, be sure to contact the responding agency and request copies of all reports, 911 calls, dash cam video, body cam video, photographs, statements and any other evidence that may have been gathered from the scene of the accident. Depending on the location, street camera surveillance may be available as well. Some of this evidence, especially body cam video, may be discarded shortly after the accident. Therefore, it is critical you request this information promptly. In reviewing the reports and your statement, if you believe there are errors or omissions, bring this to the attention of the responsible agency as soon as possible.

Contacting your insurance company promptly is important as well. Immediately review your most recent insurance declarations. If you have what is referred to as underinsured or uninsured motor vehicle coverage (UIM/UM), your insurance company may provide coverage for injuries and damages you sustained as part of the accident if the negligent party has insufficient insurance coverage or no coverage at all. Your insurance company will also need to be notified to address the property damage to your motor vehicle.

You will also most likely be contacted soon after the collision by the other driver’s insurer. His or her company will likely want to abruptly resolve matters with you for an amount that may be far less than the true value of your loss. If your accident occurred in the State of Wisconsin, you have 3 years from the date of the accident to bring a lawsuit. Therefore, there is no immediate need to settle your claim within days or weeks of the accident. What may seem like an expected ache or pain that you feel will go away in days or weeks, could be a far more serious (even permanent) soft tissue injury. Waiting to more fully assess the extent of your injuries and damages is vital to being fully compensated.

The other driver’s insurance company will also likely want you to give a statement that is recorded. This insurance company does not represent you and does not have your best interests in mind. This statement could be used against you later. You have no obligation to give a statement to the other driver’s insurer. If you do give a statement, you are entitled to a copy of the statement and we recommend securing one as soon as possible.

If you are involved in a motor vehicle collision, the attorneys at Anderson O’Brien are here to help. We have decades of experience representing those injured in motor vehicle accidents to ensure that they are protected. We are only a call away.

 

Children Moving Out?  Make Sure They are Still Insured

Children Moving Out? Make Sure They are Still Insured

Often families with teenage drivers living at home do not have those teenage drivers listed as named insureds on the auto insurance policy.  Frequently, Mom and Dad are the named insureds on the insurance policy and all the vehicles are listed, and the teenagers qualify for coverage by virtue of being related to Mom and Dad and living in their home.  This type of familial relationship coverage for the teenage drivers usually has a special term of art in the insurance policy, such as “resident relative,” “member of same household” or “resident of your household.”

While each insurance company defines their terms differently, generally speaking, this type of familial coverage means that drivers who are living with their parents qualify for insurance coverage even though they are not the “named insureds” on the auto insurance policy.  This type of coverage is usually defined as a person related by blood (or adoption) to the named insured and living with the named insured; some insurers may limit this category to minor children only, but others may include adult children as well.

The reason this topic is being raised, is that sole reliance on resident relative coverage can create potential problems when that child moves away from home (goes to college or armed forces) or splits time between two homes (divorced parents).  Hopefully, a hypothetical will illustrate.

Billy is a hypothetical 18-year-old high school senior living with Mom and Dad.  The family has a hypothetical auto insurance policy that lists Mom and Dad as the named insureds and covers both of the family vehicles.  While Billy is not a named insured on the policy, by virtue of being related by blood to Mom and Dad and living in the same household with them, he qualifies as a resident relative insured, even as an 18-year-old.

Billy graduates from high school and goes off to college in another city; he is no longer living with Mom and Dad, nor is he listed as a named insured under any other auto insurance policy.  While at college, Billy gets injured in a terrible auto wreck while riding in a friend’s car.  Unfortunately, the at‑fault driver does not have sufficient insurance (or worse, no insurance at all) to cover Billy’s extensive injuries and damages.  However, Billy and his parents think that Billy should have underinsured motorist coverage available to him under Mom and Dad’s auto policy.

The problem is, Billy may no longer qualify as an insured under Mom and Dad’s auto policy.  Billy was never a named insured, the crash did not involve Mom and Dad’s cars, and Billy may no longer qualify as a resident relative.  Because Billy was not living with Mom and Dad at the time of the car crash, he may not qualify as a resident relative anymore.  Whether Billy qualifies for coverage under Mom and Dad’s policy will depend on the policy’s definition of resident relative and Billy’s precise living situation at the time of the wreck.  Had Billy completely moved out or did he leave his furniture and personal belongings at home?  Where was he getting his mail, or what was his voting address?  Regardless of the facts, by virtue of no longer living under the same roof with Mom and Dad at the time of the wreck, the insurance company will likely argue that Billy does not qualify as an insured.

You and your family, can avoid being left in this limbo by making sure your children who are leaving and not getting their own auto insurance are specifically listed as named insureds on your auto policies.  That way, if they are injured in a car wreck, they can have the benefits and protection of the uninsured and underinsured (if underinsured was purchased, and it should be purchased) coverage.

 

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