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THE BIRTH OF A LAW SUIT                                               
By YOLANDA ARCE, ESQ.

When you are injured, you either do not realize that you have a potential action or you believe you do without knowing what having an action involves. This article will better educate you about what commencing and maintaining an action involves.

From the date of your injury a clock starts ticking away and if you have not started an action by the time the timer goes off, you can not start the action ever. In a negligence matter, such as in a simple automobile accident, your time to start an action runs out after 3 years from the date of your accident. If, for example, a car takes a red light and strikes your vehicle on September 14th (my favorite day as it’s my birthday—I forget the year) of the year 2006, then you must start an action by September 14, 2009 or your Statute of Limitation runs out and you can never  commence your action. If your accident is with a City/Municipal vehicle, you have to file a Notice of Claim with the proper authority within 90 days of the accident and also start an action within one year and ninety days.

So, you go to a physician with all your aches and pains, soon after the accident, and treat for a while, using your car’s No-Fault insurance, since your health insurance may deny coverage and in a motor vehicle accident, No Fault insurance is primary. You undergo testing which includes MRIs and you are told you have some herniations, bulges, tears and need surgery. You imagine you have an injury and pain to last a lifetime and you want an attorney.  Note that you do not need such severe injuries in order to commence and maintain an action and that such injuries may not prevent the Court from dismissing your action if a Summary Judgment Motion is filed by opposing attorneys. 

You seek a Personal Injury attorney for your injuries. There is usually no fee and the attorney receives a portion of what you receive when your case is over.  Our firm pays all the expenses on the case and when you receive your settlement/award, we take our fee and expenses.  You pay us no fee directly. 

You get an appointment or just come by to see an attorney who makes a copy of your police report, medical treatment information, your insurance policy’s cover page and card after taking down all your information regarding the accident, treatment, prior accidents and injuries and even subsequent accidents and injuries. If for some reason you have no treatment, no testing and have no idea what you should do because you have no medical insurance but have a lot of pain, the attorney advises you about No-Fault and helps you complete the forms that must be completed within 30 days of the accident so that your treatment has the coverage you need to at least commence treatment.

The attorney may have you sign a retainer agreement stating that he or she represents you and has you sign forms that need to be completed so your license is not jeopardized for not reporting an automobile accident, an MV104. You sign a lot of other forms too. You sign a lot of HIPPA compliant authorizations because once tests indicate or confirm that you have injuries that you can sue for, under the law, your medical records regarding the accident injuries have to be shared with the other person’s attorneys. Your attorney must requests these records first, usually many times, review them and forward them. Your attorney will continuously requests updates.

Eventually your attorney pays the current $210.00 fee and commences your action with the filing of a Summons and Complaint which states where the case will be heard, how the accident occurred and how the other driver was negligent, among other facts. This Summons and Complaint, usually how we commence the action, must be served upon the defendant driver, defendant owner and anyone else who might be negligent in your action. There are various process servers who serve the Summons and Complaint on the defendant or on the Secretary of State, if there is an out of state driver or a corporation, etc. There are various fees that go with all of that.

Now you may be wondering why I mention these fees. Well, every time your attorney does something and there is a fee, your attorney must pay it out then hope your case goes well so that he can get it back at the end of the case, when it settles or there’s a Plaintiff’s verdict. Otherwise, your attorney has lost all those fees and expenses. So it is important that an attorney make sure there is an actionable injury and it may take some time before your action is started but it is less likely to be dismissed by the Court if your attorney confirms injuries, makes sure there is liability (the other driver has some fault), and covers several other bases before sending out all the letters saying your attorney is representing you. Once those letters go out, the insurance companies, sometimes even the other driver, calls your attorney requesting a million and one things or just to tell your attorney off for representing you.

Now once the defendant driver or other receives the Summons and Complaint, he sends it to the insurer who sends it to an affiliated attorney. The attorney has up to 30 days to answer and demand that your attorney provide certain information, especially specifics about your injuries and forward authorizations so that the attorneys can obtain medical records about your accident injuries. Now your attorney sends all this, answers all the questions and very often the defendant’s attorney requests them again and again. Now you see why you signed so many forms. In the event that there is no answer to the Summons and Complaint, your attorney should contact the defendant and tell them to put in an Answer or make a default motion against the defendant (find them responsible by virtue of not answering) which has yet another fee attached and which will probably be vacated (lifted so that the defendant gets to answer late) in the interest of having your case decided on the merits.

After all the back and forth, with your attorney making requests for information and the other attorney doing the same (all in very legal written form), your attorney makes a Request for Judicial Intervention for a Preliminary Conference Order, after paying a fee to the Court again. At this PC, the attorneys meet with the Court to set down dates by which certain things have to be done such as the exchange of authorizations, again, depositions (where you and the other driver are asked many questions about the accident, injuries, employment etc), Independent Medical Examinations of you by a doctor who is not so independent because the other driver’s attorney schedules the examination and the insurance company pays him and many other legal matters.

Over the next few months or years, the other attorney makes motions to the Court to attempt to have your action dismissed. Your attorneys must oppose the motions using case law, your medical records (which have been updated for yet another fee), an affidavit from you (if needed), a report from your treating physician (after your attorney pays another fee), and usually oral argument before the Court. After the motion is submitted, you wait, as does your attorney, for a decision from the Court which is written by the Judge’s Court Attorney, although a few judges still write their own decisions. When I was a Court Attorney, there were days when my Judge and I picked up over 50 motions in one day so you can imagine how long it might take to get a decision from an overwhelmed Judge and his or her Court Attorney.

If your case is not dismissed, your attorney and the other attorney makes several Court appearances to update the Court on the case and see how much closer to finishing all the discovery (depositions, obtaining medical records etc) you are and how much closer to trial or settling the case. If you are like most Plaintiffs, eventually your case settles. It might be two years after you start the action, it might be longer or shorter. It all depends on all the things above going your way.

 
   
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