We make every attempt to settle your case for fair and full value without filing a lawsuit. However, with increasing frequency, insurance companies refuse to accept responsibility for the negligence of their insured. Some insurance companies, Allstate especially, will only make lowball settlement offers. Have no doubt that the primary motive of insurance companies is not to settle your claim fairly but to make money. You are not in good hands and most certainly the insurance company is not a good neighbor. In many instances attempting to settle before filing suit is a waste of time. The insurance companies will drag out the settlement process because it is in their interest. They will take the time to investigate you and your doctors. They hope that you will tire of the process and accept a low offer. They will declare war on you and your lawyer. We will be prepared.
The following is a general guide on the lawsuit process. Please let us know if you would like any further explanation.
- A lawsuit is begins by filing a Complaint. This document or pleading is a short plain statement putting the defendant on notice of the nature of the claim. The person making the claim is called the plaintiff. In Colorado there is no third party claim against the wrongdoer’s insurance company. What does that mean? It means, for example, that you sue or name as the defendant the person who caused the collision or the business where you slipped and fell. As much as you’d like to, you can’t sue the negligent party’s insurer. An exception to this rule is when the person who hit you is uninsured. In that instance you can sue your insurance company if it refuses to settle your uninsured claim. The Complaint gets filed in the county where the incident occurred or in county where the defendant resides. Then the defendant is “served” with the Complaint by private process server or sheriff.
- After the Complaint is served the defendant has twenty days (20) to file an Answer. The defendant must either admit or deny the allegations in the Complaint. In addition, any defenses to the Complaint must be alleged as well. Some defenses include comparative negligence, assumption of risk, and sudden emergency. Often the defense files every conceivable defense no matter how frivolous or lacking a basis in fact. It can be incredibly frustrating dealing with these defenses and unfortunately, courts rarely punish or sanction defense lawyers for filing frivolous defenses.
- After the Answer has been filed and the case gets set for trial, discovery begins. What is discovery? The discovery process involves discovering or investigating the facts that support the claims in the Complaint and defenses in the Answer. There three basic avenues of discovery are interrogatories, request for production of documents and depositions.
Interrogatories are written questions seeking to get more information. Here are samples of interrogatories typically asked of a plaintiff in an auto case. In addition to these pattern interrogatories, the defendant may ask non-pattern interrogatories or questions specifically tailored to your case. The maximum number of written questions is usually limited to thirty (30).
Plaintiffs and defendants usually submit requests for production of documents. Plaintiffs typically request a complete copy of the insurance claims file along with any photographs or transcripts of recorded statements that might be in possession of the defense team. The defense team will seek extensive information from you. They will be permitted access to all relevant medical records. In addition, they will attempt to get all of your medical records going back as far as ten years before the accident. Depending on the nature of your claims they may request that you sign releases for copies of your tax returns, medical records, employment files, educational records, insurance records and more. Aggressively litigating a case means objecting to producing irrelevant records and releases and asking the court for a protective order if necessary. Similarly, if the defendant refuses to produce relevant or discoverable documents, asking the court to compel the defendant to provide them.
Deposition is the most important part of the discovery process. This is a recorded statement under oath where the parties are asked questions about the case. This is the defense lawyer and insurance company’s opportunity to see what kind of witness you will make in court. Credibility with the jury is king, so giving complete honest answers to the questions and being likeable is essential. Since the procedure will be recorded by a court reporter and put into a transcript, you will be stuck with your answers. When taking the deposition of the defendant, we do our best to get the defendant to take responsibility for his or her actions and destroy their defenses. When it comes time for deposition, we make sure you are fully prepared.
- Your Colorado personal injury case will require experts to prove your claims. The primary expert will be your medical doctors. They will be called on to opine on your injury causation, diagnoses, and treatment. In many cases, they will be asked testify regarding permanency, limitations or impairments, and anticipated future medical expenses. Sometimes additional experts might be required such as accident reconstructionists and economists. The defendant may retain their own experts as well. Many defense accident reconstructionists will rely on junk science or outright lies when offering their opinions on how your accident occurred and the speeds involved. If allowed by a permissive judge, they will say that the forces involved couldn’t have injured you. The most potent defense weapon is the defense doctor. These highly paid hired guns will review all of your medical records and perhaps examine you. Their so called independent medical evaluation or IME is anything but. Most of the time these exams are little more than depositions where the doctor plays ‘gotcha’. Many of these “doctors” earn hundreds of thousands of dollars per year giving the insurance defense team what they want…a defense medical exam. Getting these doctor’s financial records is often the best tool the plaintiff’s lawyer has to demonstrate their bias for the jury. When a large percentage of the doctor’s income comes from working insurance defense, these creatures don’t typically do anything to offend those buttering their bread.
- Most Colorado courts order that the parties attend some type of alternative dispute resolution before trial. Most commonly, once discovery is completed the case goes to mediation. This is a settlement conference conducted by a retired judge or experienced attorney agreed to by the parties. A mediation is not a trial and you will not be required to testify. The mediator will review the claims and defenses, demands and offers, and meet with the parties to attempt to try and settle the case. Most cases do settle at mediation or shortly thereafter.
- When a case doesn’t settle it goes to trial. From the beginning we prepare every case for trial. This includes deciding as soon as possible what experts will be needed to testify and deciding, organizing, and preparing exhibits. Exhibits might include photographs, medical illustrations or other things that will help the jury decide your case is a winner and that you are entitled to a substantial award to compensate you for the harm done to you. The steps of the trial are basically as follows: jury selection, opening statements, plaintiff’s case and presentation of evidence, defendant’s case and presentation of evidence, closing arguments, jury deliberation and verdict. When we take your case to trial, we will be absolutely prepared.