The law of negligence is centuries old. The American system of negligence was inherited from the English system, called the common law. The common law is a series of decisions of judges in different areas of law. The area of law which governs negligence cases is called tort law. The word tort is Latin for “Wrong”, and the law of negligence is concerned with both accidental and intentional wrongs.
The parties to a negligence case are called the plaintiff and the defendant. The plaintiff is the person who has been injured and who alleges that his or her injuries were caused by the negligent conduct of the defendant. In a negligence lawsuit, the plaintiff has the burden of proof. This means that the plaintiff must show that it is more likely than not that the defendant’s actions were wrong and that those actions caused the plaintiff’s injuries.
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THE STEPS OF A PERSONAL INJURY CASE . . .
A personal injury lawsuit usually begins when the plaintiff files a summons and complaint with the court. The summons is the legal document that gives the court the power to pass judgment on a defendant. The complaint describes the facts and circumstances of the accident. It must show that the defendant had a duty not to injure the plaintiff, that the defendant violated that duty, and that the plaintiff’s injuries were directly caused by the defendant’s violation. A duty may be established by common sense, by a statute, or otherwise. A violation is established by the facts as determined by a judge or jury. Injuries are established by medical proof.
After the summons and complaint is served on the defendant, the defendant’s insurance company or attorneys answer. The answer either admits or denies the facts alleged by the plaintiff and also states any legal defenses to the claim.
The law gives both the defendant and the plaintiff an opportunity to find out information about the claims and defenses before trial. This is called discovery. Along with the answer, the defendant usually asks for information by using discovery demands. The plaintiff must respond to these demands as long as they are proper demands. Once the plaintiff has responded to the defendant’s demands, the plaintiff sends the defendant his own discovery demands. The defendant must respond to these demands as long as they are proper demands.
As part of the discovery process, the defendant’s attorneys are permitted to ask the plaintiff questions at a meeting called adeposition or examination before trial. This may take place at an attorney’s office or at the courthouse, depending on the individual case. The plaintiff’s attorneys are also entitled to depose a person from the defendant. If the defendant is a large company, disagreement may arise as to what person should be questioned and rulings by a judge may be necessary.
After discovery is completed, there is usually a conference with the judge to certify that a case is ready for trial. If the judge believes that all discovery has been completed, the case will be placed on the trial calendar. Because of the large number of cases in the court system and the shortage of judges, it is ordinarily at least two years from the time a case is placed on the trial calendar until the time it is called for trial.
WHAT A PERSONAL INJURY CLIENT SHOULD DO . . .
At the initial interview, you should be prepared to describe everything about your accident in as much detail as possible.
During the initial interview and during the progress of the case, we may ask for your cooperation to find out certain facts or to send us certain documentation. Please try to send us the requested materials as soon as possible. If it is not apparent what something is, include an explanatory letter.
We may need you to go with a member of our staff or an investigator to the scene of your accident. If we schedule an appointment for you, please call us immediately if you need to cancel or reschedule.
If your injuries are visible (for example, a cast or a scar) you should periodically take photographs of the injury and send them to us with a letter indicating the dates they were taken.
If property damage was involved in your accident (for example, damage to an automobile from an accident or damage to a building from an explosion), please tell us so that we can obtain photographs.
If there are witnesses to your accident, we will want to obtain statements. If you hear of anyone who knew beforehand of the dangerous situation that caused your injury, who saw the accident, or who spoke to you immediately afterward, you should obtain their full name and contact information and tell us immediately.
You should keep any paperwork you receive in connection with your claim in one place (preferably an envelope or folder) in case it is needed later. This includes:
Any out-of-pocket expenses (including but not limited to: pharmacy receipts, medical supply receipts) and your mileage to and from doctors, physical therapists, etc.
If you return to work after an accident and are making less money as a result of your injury or disability, you should keep careful track of your earnings. You should keep all of your pay stubs and make extra copies of your tax documents.
You should see a doctor on a regular basis so that your injuries will be sufficiently documented. Keep a list of every doctor, chiropractor, physical therapist, radiologist, hospital and pharmacy. The list should include the name, address and telephone number of the health care provider, as well as the dates of treatment. Tell us immediately when you treat with a new doctor or facility so that we can update our file.
Insurance companies sometimes hire investigators to observe a plaintiff and take statements from them. You should tell anyone who wants information about your claim to contact Grey & Grey. You are advised not to talk to anyone about your claim unless they either work for Grey & Grey or unless we assign them to work on your case.
If you file any other claim (such as workers compensation, social security, unemployment, etc.) after your accident, you should make certain that we have copies of any application you filled out as well as any medical reports which were submitted with the application. If you are out of work and totally disabled for six months or more, you should call Grey & Grey to ask if you are eligible for Social Security Disability Benefits.
WHAT GREY & GREY DOES . . .
We will investigate your claim and, if indicated, prepare and file a summons and complaint beginning the lawsuit. Once we begin lawsuit, we are dedicated to obtaining the best possible result for our clients.
We will have competent associates, paralegals and staff that are informed about your case and able to speak with you when you call.
We will ordinarily pay the costs associated with bringing a lawsuit, such as court fees, investigative charges, etc… Under New York State ethics rules, however, the client is ultimately responsible for these costs. If we obtain a recovery for you, costs that we paid for you must be deducted from that recovery.
We will appear at all court conferences or hearings which are scheduled in your case.
We will try to obtain the best possible recovery for you. This may require waiting until the time of trial, as defendants often are willing to settle for more money later in a case.
If your case cannot be settled, we will represent you at trial and argue on your behalf.