The world of car accident claims has a language unto itself. Many Virginia personal injury attorneys forget that for most people, a car accident claim is the first time in their lives they have ever dealt one-on-one with an attorney. We attorneys tend to throw around words, thinking that everyone knows what we are talking about! Here are some terms you may see if you've been injured in accident and are doing research on the Internet before speaking to an attorney:
Negligence is the failure to use ordinary care. Ordinary care is the care that a reasonably prudent person would have used under the same or similar circumstances. Examples of negligence include: failing to pay full time and attention to driving; driving while intoxicated; speeding; texting while driving; and failing to stop at a stop sign or traffic signal.
Statute of limitations:
The time limit within which an actual lawsuit must be filed in court. The lawsuit must be filed against the proper defendant(s). In most cases in Virginia, the statute of limitations for personal injury claims is two years from the date of the accident. If the defendant is a governmental agency, however, often "a notice of claim" must be given earlier than two years, in some cases as early as six months from the date of the accident. Generally speaking, children have a longer time to sue.
Contingent attorney fee:
The fee your attorney will charge you for representation. This fee will be a percentage of the total amount recovered from the defendant or his insurance company. Generally, you will also be responsible for your attorney's out-of-pocket expenses and, if there any medical bills that remain unpaid, they will have to be reimbursed. Contingent fees vary by attorney and there is no "standard." Many attorneys charge on a sliding scale, with fees ranging around 25% of the total recovery if the case can be settled before a lawsuit is filed, but increasing to as high as 40% if the case goes to trial. A personal injury fee agreement should be in writing and you should understand exactly how that fee is calculated by your attorney.
Settlement demand package:
Generally, when you have finished your treatment, your attorney will meet with you and give you a written settlement evaluation of your claim. You and your attorney should agree on a settlement strategy and then your attorney will make a demand upon the insurance company. A settlement demand package often includes medical records, bills, photographs, reports and anything else your attorney feels would help the insurance claims adjuster understand the damages you have suffered because of the accident.
An opportunity to settle your claim under the guidance of an impartial mediator. Mediations typically involve a meeting between the lawyers, their clients, and a mediator who acts as a facilitator. The mediator is not participating as a judge or an arbitrator, but instead tries to facilitate discussion and resolution of issues to help the parties settle the claim. A good mediator can help the parties understand their own side's weaknesses and can impress upon each party the benefits of settling. Not all cases that are mediated are settled.
Medical payments insurance coverage:
Typically a small health insurance "policy" that is included in your car insurance policy, sometimes called "MedPay." Following an accident, your own car insurance company may provide some coverage for your medical bills, especially if you have co-pays or deductibles.
The process of filing in court to demand that someone else owes you something because of their negligence. Typically, the defendant's insurance company will hire an attorney who will file an answer. In Northern Virginia, it takes about one year for a case to get to trial.
A process that goes on after the lawsuit has been filed and answered. The parties may exchange questions and answers ("interrogatories") that are sworn to under oath. The parties may engage in depositions of the parties and of witnesses. In many cases, your health care provider will be deposed. Discovery takes place so each party will know what the other party is going to say at trial.
Sworn testimony given under oath in the presence of a court reporter. Depositions are typically scheduled at the mutual convenience of all involved. Following the deposition, a transcript is generally made and this transcript can be referred to at trial and, in some cases, can be used at trial in lieu of actual live testimony.
Witnesses who typically did not see or experience any of the facts of the case and are called to testify because they have some special expertise that members of a jury would not typically have. In many cases, your treating healthcare providers may be called as "expert witnesses" because they know certain facts about the case (e.g., what they did for you) and are also allowed to express opinions about what may happen in the future and whether the treatment they provided was related to the accident.
Most personal injury cases reach some sort of settlement prior to trial. A settlement typically involves an agreement by the insurance company for the defendant to pay the plaintiff (the injured person) a certain sum of money. In some cases, settlements may involve long-term payoffs ("structured settlements").
A decision by a jury after hearing the evidence at trial. In Virginia, car accident cases are heard by seven-member juries. A jury's verdict must be unanimous. The jury hears the evidence and is given instructions about the law. The jury is not given any sort of a "formula” to determine the amount of the damages to be awarded.
Where another company or party has a claim on some part of your verdict or settlement. It is not unusual today that if your health insurance company pays your medical bills associated with an accident, and you recover those bills from another insurance company, you will have to repay your own health insurance company. That is because they are "subrogated" to your claim. In some circumstances, an insurance company will claim subrogation rights that they don't actually have. An experienced personal injury attorney can help you determine whether or not your insurance company has a right to any of the proceeds of your settlement or verdict.
A voluntary dismissal of your claim which allows you to re-file your claim at a later date. In Virginia, you generally have six months from the date of a nonsuit within which to re-file your claim, even though the statute of limitations would otherwise have already expired.
Benjamin Glass is a personal injury attorney in Fairfax Virginia. The above definitions are given as general information only. You should consult with an experienced board certified attorney about your claim. Mr. Glass has a library of consumer videos about the law at www.LegalAcademyVideos.com.
If you have a question for Ben, you can submit it confidentially online at JustAskBenGlass.com.