If you are unable to reach a reasonable settlement with the
insurance company, your lawyer will file a “Complaint for
Damages” against the party or parties who injured you. The
person who hurt you (or her insurance company) will then have
to file a formal response (called the “Answer”) to the Complaint
within a certain time, usually 30 days. If the defendant fails to
file an Answer within 30 days, and your lawyer has not granted
the defendant an extension of time in which to file, your lawyer
may file for a Default Judgment.

After the Complaint and Answer have been filed, the fact-finding
part of the lawsuit begins. This is formally known as
“discovery.” Usually the first step in discovery is sending specific
questions (“Written Interrogatories”) to the other party
(the “defendant”). The defendant must answer the interrogatories
under penalty of perjury. After interrogatories have been
served and answered, your lawyer will want to take the deposition
of the other party. Likewise, the lawyer for the defendant
will usually want to take your deposition. A deposition is a
formal examination of one party by the other party’s attorney.

If you are being deposed, the deposition will most likely
take place in the other party’s lawyer’s office. A court reporter
will swear you in just like in “real” court and will take down
everything that is said during the deposition (except where the
attorneys speak off the record). During the discovery process,
the lawyers will also want to take the depositions of any expert
witnesses the other lawyer plans on calling at trial, such as an
accident reconstructionist or medical expert.

With input from the attorneys for both sides, the judge will
set a trial date. Before the date for the trial arrives, the judge
will hold a pre-trial settlement conference with the parties and
their attorneys in an effort to reach an agreeable settlement. If
the parties are unable to agree to settle the case for a certain
amount, the case will proceed to trial. It is not all that unusual
for the parties to settle the case on the courthouse steps on the
morning that the trial is set to begin.

At the trial, you, the injured victim, are referred to as
the “plaintiff.” As already noted, the person who hurt you is
referred to as the “defendant.” As the plaintiff seeking compensation
from the defendant, you have the burden of proving
your case. You are required to prove to a “preponderance of
the evidence” that your injuries and damages were caused by
the defendant. Preponderance of the evidence means that you
must prove that it is more likely than not that you were injured
and that the defendant caused your injuries. All you need to
do is tip the scales of justice in your favor ever so slightly.
Thus, if you can prove that the defendant’s wrongful act was
51 percent or greater, you will win the case. Contrast this standard
of proof with the criminal standard of proof, in which the
District Attorney must prove “beyond a reasonable doubt” that
the accused committed the crime. The civil standard of “more
likely than not” is considerably lower than the criminal “reasonable
doubt” test.

Before the trial begins, a jury must be selected. (In some
personal injury and wrongful death cases, the parties will want
to have the case heard and decided by the judge rather than a
jury, but this is relatively rare in personal injury cases.) A group
(“pool”) of potential jurors will be brought to the courtroom.

It used to be that 12 jurors heard a civil case and had to bring
back a unanimous verdict. Now, in California, only nine of the
12 jurors must agree with the verdict for the plaintiff to prevail.
Some judges prefer to do the bulk of the questioning of each
juror themselves to decide whether the potential juror can be
fair and impartial in making a decision in the case. Other judges
let the lawyers do most of the questioning.

After the jury has been selected and sworn in (“empanelled”),
the plaintiff presents his “case-in-chief.” Before the
trial testimony begins, the judge may briefly tell the jury what
the case is all about. The plaintiff’s attorney starts the trial with
an opening statement. Opening statements are designed for the
lawyers to state what facts they intend to prove to the jury. The
attorneys may not argue any aspect of the case during opening
statements. Arguments, such as what the facts prove or the
credibility of a witness, are saved for the end of trial. After the
plaintiff’s attorney has made an opening statement, the defendant’s
attorney may wish to make an opening statement for
the defense, or he may wait until the plaintiff’s case-in-chief is

In the typical personal injury case, the plaintiff testifies
under oath as to the facts leading up to and causing the accident,
his physical injuries, property damage, pain and suffering,
past and future medical expenses, loss of enjoyment
of life, etc. The plaintiff’s attorney will present the testimony
of experts in their various fields—e.g., accident reconstructionists,
medical doctors, economists, accountants, and pain
management specialists—to prove how the accident happened
and why the defendant was as fault, the injuries and surgeries
the plaintiff has had and any future surgeries the plaintiff may
need to undergo, and how his medical injuries will impact the
rest of his life. He will also introduce the testimony of forensic
accountants to prove how much loss the plaintiff has had and
will have in the future due to a diminished ability to work (or
complete disability), and the costs of medical care the plaintiff
will need in the future. At the end of each witness’s testimony,
the defendant has the right to cross-examine the witness and
try to discredit or poke holes in the witness’s testimony.

Once the plaintiff has finished presenting his case-in-chief,
the defendant has the right to present her side of the case. At
the close of the plaintiff’s case-in-chief, the defendant’s lawyer
may ask the judge to enter a “nonsuit” against the plaintiff,
based on the argument that the plaintiff failed to prove all of
the elements of his case or failed to prove that the defendant
was in any way responsible for the plaintiff’s harm. If the judge
grants the defendant’s Motion for Nonsuit, the trial is over, the
defendant being declared the winner.

If the trial judge denies the Motion for Nonsuit, the defendant
presents her side of the case. The defendant may take the
witness stand herself or present an accident reconstruction
expert witness to contradict the plaintiff’s expert’s testimony,
as well as putting on the stand expert physicians, accountants,
and other witnesses in an attempt to prove that the plaintiff’s
damages are nowhere near what he is asking the jury to award.
After the defense counsel rests the defendant’s case, the plaintiff
has the right to call any witnesses to dispute (“rebut”) any
or all of the defendant’s witnesses.

After both sides have rested their respective cases and all
rebuttal witnesses have been called and testified, the judge
instructs the jury as to what law(s) to apply. (Before the trial
even began, the lawyers for the plaintiff and the defendant will
have submitted the jury instructions they would like the judge
to read to the jury at the end of the case).

After the judge has read all of the jury instructions to the
jury, the jury retires to the jury room for deliberations of the
merits of the case. The first order of business for the jury is
selecting the foreperson, who will be in charge of keeping the
deliberations civil. In many cases, after the foreperson has been
selected, the jury will immediately take a vote by private ballot
to see how close they are to getting a consensus. Lawyers used
to believe that if the jury reached a verdict quickly it was in
favor of the defense, while longer deliberations benefited the
plaintiff. However, that is just an old wife’s tale and nothing can
be read into how long it takes for the jury to reach its verdict. As
noted above, in civil cases, a unanimous verdict is not required;
only nine jurors out of the 12 need agree for the plaintiff to win.

With the exception of plaintiffs in Small Claims Court
actions, if you disagree with the verdict or with any of the
judge’s rulings during the trial, you have the right to appeal it
to an intermediate court, the District Court of Appeal (DCA)
for your area. A panel of a DCA consists of three judges whose
review is limited to facts and exhibits entered into evidence
at your trial. If applicable, the DCA will also decide whether a
trial judge’s decision was wrong regarding not allowing you to
present helpful evidence to your case to the jury. The appellate
judges read all of the transcripts relating to the trial, whether
the testimony was made in open court in front of the jury or in
the judge’s private chambers with just the judge, lawyers, and
court reporter present. The court will not consider any testimony
or evidence that you or your attorney forgot to bring up
at trial. However, if there is newly discovered evidence since
the trial, the DCA may consider it or, if it is important, the DCA
may send the case back to the lower court for a retrial in light of
the newly discovered evidence.

The DCA also reviews the law applied in the case, to make
sure the trial judge did not make an erroneous decision based on
a misinterpretation of the law or give an instruction to the jury
that misstated the law. If the trial judge’s error is considered
harmless (i.e., it didn’t affect the outcome of the case) the DCA
deems such error harmless and affirms the verdict. If, however,
the error was “prejudicial,” that is, it prevented either side from
getting a fair trial, the DCA will call the mistake prejudicial and
send the case back (“remand”) to the trial judge for a new trial
or other reparative action.

If either party is dissatisfied with the DCA’s decision, they
may try to appeal the case to the California Supreme Court.
Unlike DCAs, which must consider and rule on every case
appealed to them, the California Supreme Court only takes
those cases it wishes to hear

The first step in a claim that will wend its way through the legal
system is, of course, an injury or the death of one or more persons
due to the fault of another person or persons. Part VI of
this book discusses some of the more common causes of personal
injury and wrongful death, while Part VII addresses some
of the more common injuries encountered.

If your claim involves a public entity (a governmental
agency), be it a city, county, the State of California, or the
United States, you must act quickly. Claims must be made with
the appropriate governmental agency within a certain time
limit, usually six months (although, in some cases, it can be
considerably less).

The first focus of a claim is ensuring that the injured victim
has received or is receiving the proper medical care. An experienced
personal injury law firm usually knows which doctors
are considered the “tops” in their field and they can refer you to
those doctors as appropriate.

As soon as you have retained (formally hired) the law firm
or attorney, they will begin an immediate investigation into the
cause(s) of the accident. In an automobile accident case, an
investigation may include:

  • Sending an investigator to the scene of the accident to
    take pictures of the accident site at approximately the
    same time of day as the accident occurred
  • Taking pictures of the cars before they are repaired to
    show where and how badly the vehicles were damaged
  • Finding witnesses and taking their statements
  • Directing you to a good doctor to evaluate how badly
    injured you are, the type of treatment you will need in the
    future, etc.

Depending upon the type of accident that you were injured
in and the severity of your injuries, various experts may be
retained to discover the cause of the accident or to prove the
extent and permanence of your injuries. This may involve
hiring an accident reconstruction expert, medical doctors,
experts in product design and manufacture, psychotherapists,
economists, accountants, pain management specialists, etc.

After the initial investigation has been performed, the lawyer
will contact the insurance company’s adjuster and begin preliminary
settlement talks. Insurance company adjusters keep
their jobs by settling cases for as little as possible, so it is typical
for the insurance adjuster to blame part or all of the accident on
you or argue that you are exaggerating your injuries.

As your injuries begin to heal (or if you have suffered paralysis,
an amputation, and/or a traumatic brain injury), your
attorney will start to calculate the value of your case. As we discussed
in Part IV, Working with Your Attorney, your attorney
will put a monetary value on your case based on a number of
factors. The other driver’s insurance company should promptly
pay the policy limits if your injuries and resulting disability run
into the millions of dollars but all the person who hit you has is
an insurance policy for $100,000 and there is no question that
the other driver was at fault for the accident.

When the insurance policy is sufficient to pay the damages
How a Case Proceeds Through the Justice System
or your injuries and lost wages clearly exceed the amount of the
policy limits, your lawyer may send a “demand letter” demanding
that the insurance company pay the full amount to settle
the case and avoid an expensive trial that it is likely to lose.
On the insurance company’s part, the insurance adjuster may
send your lawyer a letter offering to settle the case for a certain
amount that is considerably less than the insurance limits. If
the two figures are in the same ballpark, further settlement
negotiations with the insurance company or their lawyer may
prove fruitful. If, however, the two sides have drastically different
views on the value of the case, then it will be necessary to
resort to the legal system. Over 95 percent of all personal injury
and wrongful death cases settle without going to trial—sometimes
on the courthouse steps the day the trial is to begin. Also,
many cases are settled at mediation or arbitration.