You’ve hired a personal injury attorney to help you cover economic losses for you injury. He’s guided you through the process and mentions using an alternate dispute resolution rather than going to court. What exactly does this mean? What are the benefits of going this route?
Alternate Dispute Resolution refers to a growing trend in litigation whereby adversaries opt to have their disputes resolved by an independent party as opposed to the court system. It is especially relevant in personal injury law due to the lengthy court process and cost of litigation. Three main forms of Alternative Dispute Resolution are commonly used in personal injury litigation including motor vehicle accident cases. They are Mediation, Nonbinding Arbitration and Binding Arbitration. Each has their benefits and drawbacks.
Mediation is the process in which the parties to a claim or lawsuit meet with a specially trained mediator whose job is to review the case, discuss the issues and work towards bringing the parties to a mutually agreed upon resolution. This can usually lead to good results and I recommend it often.
The process is simple. Generally, the parties meet with the mediator in an office or conference room. First, the plaintiff, through his attorney, will present his version of the case stressing its stronger points. Next, the defendant will present their alternative version stressing their stronger points. After this, the mediator will speak to each party separately trying to find out how much the party is seeking to recover or willing to pay. Once the mediator gets an understanding of the case and each party’s belief of the value of the case, they will work to bring the parties to a meeting point. Depending on the mediator’s view he will usually have an amount he feels is fair and will work to settle the case within those parameters.
The mediation process can be grueling and stressful. I attended a mediation one time that lasted over eight hours. The case wasn’t even settled at the mediation. However, it was settled several weeks later. The mediation helped to get the parties within a certain range. But, it just needed a little time to pass for each side to realize that a deal could be made if each party bent a little.
I resolve about fifty percent of the cases I mediate either at the mediation or shortly after. The benefits of mediation are as follow:
The drawbacks to mediation are few but none-the-less worth mentioning:
Non-binding arbitration is, in my opinion, the least desirable form of
Alternative Dispute Resolution. It works similarly to a trial but is less formal. In this format, both parties agree on an arbitrator that acts as a judge and jury. A case is presented in a similar fashion to a trial but is done in a conference room with less formal rules. This makes it cost effective. You will not need to hire doctors and experts to testify as their reports are admissible at the hearing unlike in a trial where the experts have to testify at a cost of thousands of dollars a day.
The hearing is conducted much the same as a trial but in an expedited fashion. There are opening statements, presentation of witnesses and evidence and closing statements. The arbitrator decides the case by rendering a decision. Only If both parties agree to abide by the decision is it final. If either party balks at the decision, it is discarded. That is why I avoid this type of Alternative Dispute Resolution.
The benefit of this process, however, is that it can lead to a settlement because the arbitrator’s ruling, while not binding, is indicative of how the case may go at trial.
Binding Arbitration is similar to Nonbinding Arbitration with the exception that the parties agree to abide by the arbitrator’s decision as final. While this may be risky, it is often a great way to resolve a case quickly and cost-effectively. Usually, I will entertain this option on lower valued cases where the cost of trying will outweigh the benefit of any recovery at trial.
On the other hand, I would never suggest this type of resolution for a larger case. I am not comfortable with giving an arbitrator total control over a case when millions of dollars are at stake.
In general, Alternative Dispute Resolution has become increasingly popular as a cost-effective and faster way to resolve disputes. I would always recommend at least, exploring it as a possible means of resolving your case.
Many people wonder why a lawsuit takes so long to resolve. There are various reasons for this, including court congestion and overworked and understaffed law firms. But, one of the biggest reasons is perhaps the immense amount of work that goes into completing the necessary steps to conclude a case.
Prior to starting a lawsuit, there should be a thorough investigation of the facts. This will include gathering all information from the investigating police agency, such as a police accident report and witness statements. If the accident was severe, the police may have inspected all vehicles involved, taken photographs and mapped the scene. The map may contain valuable information such as skid marks and debris from the vehicle. This investigative information should always be obtained prior to starting a lawsuit.
Next, a thoroughly prepared attorney may want to hire their own accident investigator to review the police work, visit the scene to obtain measurements and conduct witness interviews.
The investigation of the case should also include gathering all relevant medical records from all treating providers and any past records that may relate to the same parts of the body injured in this case. This information may need to be discussed with a physician hired by the plaintiff.
Once the investigation is complete it is time to draft the Summons and Complaint. These are the documents that initiate the lawsuit once filed and served upon the defendants. The Summons and Complaint is a broad list of allegations detailing the reasons you believe the other party is responsible for your injuries and should have to pay for your damages.
Once this document is served upon the defendant, they must forward it to their insurance carrier, who will hire a law firm to represent the insured. Some insurance carriers will assign in-house counsel to represent their insured. Others will hire outside firms. Either way, the defendant has 30 days to serve an Answer to the Complaint. An Answer is a formal response to every allegation in the Complaint. The Answer will either deny, admit, or deny having enough information to answer an allegation.
Once an Answer is interposed, the parties will begin discovery in the case. Discovery in the case is usually overseen by the Court. Therefore, one party will need to request judicial intervention. That is a fancy phrase for requesting a conference with a judge. At that conference, the judge will set up a formal discovery schedule. He will also set up a return date known as a Compliance Conference, at which time it will be expected that discovery is complete.
Discovery entails exchanging all accident reports, witness names, expert witness names with their reports, insurance information, medical reports, depositions and physical exams of the plaintiff. Once complete, the judge will sign a certification order stating all discovery is complete. They will then shift the case to the trial assignment part.
From the filing of the Summons and Complaint until completing discovery it can usually take anywhere from one to two years. Once a case is transferred to the trial assignment court it will await its turn for an available judge to hear the case. This process can take up to six months to a year due to the vast amounts of cases in the system. Once a trial date is assigned the case will proceed to trial. A trial can take anywhere from a few days to a few weeks depending on the complexity of the case.
A trial entails opening statements, presentation of evidence, closing statements, instructions to the jury, deliberation, and a verdict. A case can be settled at any time during the process from the time the lawsuit is filed up to the time the jury returns a verdict.
Often, people get frustrated with the court system because of the length of time it takes to resolve a case. While the process is long and complicated, it is the best way I know of to resolve disputes peacefully.
In a personal injury case, a “lien” gives an entity the right to a specific portion of a plaintiff’s settlement. A debt may sometimes be owed by the plaintiff to an entity, such as Medicaid, for benefits paid on behalf of the plaintiff. For personal injury attorneys, it’s imperative to investigate any potential outstanding liens placed on their clients. Lien claimants will recuperate the debt owed by the plaintiff for said services out of their final settlement. Generally, health insurers, Medicare and Medicaid require that their insured report any personal injury claims. Some personal injury attorneys will choose to let their clients handle the act of reporting on their own. Agencies that require reporting often program their computer systems to flag any payments made for medical treatment and may reach out to injury victims to ask if they have a personal injury claim. If they failed to report to said agencies, they risk losing their insurance. Practical personal injury attorneys will protect their clients by reporting their claims to these agencies.
In New York, liens may belong to physicians, Medicare and Medicaid agencies, certain disability policies, additional No-Fault benefits such as APIP or OBEL, workers’ compensation coverage, and private health insurance in certain instances. If a client’s health insurance does not cover their medical treatment, their physician may still treat them so long as they sign a lien, which gives the physician the right to recuperate the costs of their services from their settlement. This is a simple example of how liens work.
Personal injury attorneys have an obligation to investigate whether or not their clients have liens placed on them. If clients aren’t made aware of the liens placed on them and how they will affect their final settlement (especially before they accept a settlement offer), they’ll most definitely be confused and likely angry that they aren’t getting their full settlement check. A prudent personal injury attorney will calculate the amount their client owes in liens and fight for that additional amount. They can also negotiate with a lien claimant. Since lien claimants want compensation for their services, informing them that you will not take the case (unless they negotiate) can sometimes be a solid way to have them reduce debt owed. It’s also a good idea to keep in touch with lien claimants throughout the process of a personal injury case, giving them an idea of how the adjuster may be assessing the value of the case. The lien claimant may be much more willing to negotiate if they are kept in the loop.
Liens can become complicated in personal injury matters. It’s not recommended that victims of personal injury handle their own liens or try to get away without reporting to those agencies that require it.
