Articles Posted in Personal Injury

Depositions are a critical part of an Alabama injury lawsuit such as a car wreck or products liability type of case. Depositions are a part of discovery but are the only type where the party (plaintiff or defendant) is required to answer without help from their attorneys.

When?

Depositions take place after the lawsuit is filed and normally after written discovery has been exchanged. Normally both the plaintiff and defendant are deposed the same day in a car wreck case – bigger cases (truck wreck, product liability, medical malpractice, etc) typically involve longer depositions so the depositions will take place over a period of days.

Many car wreck cases can be settled without having to file a lawsuit. Insurance companies have whole divisions of workers set up to process and resolve car wreck claims. Though you are trying to get as much money as you can for your claim, and they are trying to pay you as little as they can, you both typically have the same goal, resolving your claim without a lawsuit. For both sides, lawsuits bring added expense, added time and added uncertainty.

An insurance company looks at three main things in deciding whether to settle a claim. First, was their insured at fault? Even if they decide the first one in your favor, they will then look at the second issue – are the injuries you are claiming related to or caused by their insured? And finally, what is the value of those injuries? Obviously, someone with mild back pain has a claim that is worth much less to them than someone who has suffered a broken leg or who has had to have back surgery as a result of the wreck.

If you or your lawyer are not able to get the claim resolved, then a lawsuit will have to be filed. Once this happens, a typical case in Alabama state courts is not set for trial, until at least 9 months to a year after being filed. Oftentimes, most cases will not be tried at the first setting, either due to other cases being set before them, or difficulty for both sides in having the case ready for a jury trial.

In our last post we discussed discovery in general and in this post we will address written discovery specifically.

Written discovery normally includes the following:

1. Request for admissions;

After you have filed an injury lawsuit and served the defendant, then the defendant has 30 days (14 days if you file in state district court) to file an “answer” or file a “motion to dismiss”.

Let’s start with an answer. In the typical car wreck or truck wreck answer, the defendant will deny virtually all of the allegations you made in the complaint. This is not always proper (a subject for a future article) but this is standard and it means that the defendant is saying, in essence, “prove every part of your case”.

The answer will also contain “affirmative defenses” that say even if the defendant was negligent or reckless in driving the car or operating a semi truck, because of the affirmative defense you lose. Here are some examples. If you sue outside the time period allowed (generally two years) then a defendant could truly be negligent but because of a statute of limitations defense the defendant would win the case. Or in Alabama we have contributory negligence which means that if you are in any way at fault, you generally cannot recover even if the defendant was 99% responsible for your injuries. There are numerous other affirmative defenses that are typically alleged by the defendant.

I was in a deposition the other day and while watching my client answer the questions, I was reminded of a couple of pointers. My client was attempting to testify to the best of her ability, but had a hazy memory of the events. While this is certainly not devastating to the case, it might at a later point bring her credibility into question. At the very least, if the other side has what appears to be a clearer memory or record of the events, it may likely cause the jury to tend to side with their version.

Cases often take a year or more to get to trial. It can be difficult to remember the events clearly, especially when issues of the timing of events or how you felt at a particular time become important. We recommend that as early in the case as you can, sit down and hand write everything you can think of about your case. Start by writing down chronologically what things happened, when they happened and how they hurt or injured you or how they made you feel.

Later, when you are required to recite this in a deposition or at trial, you will be able to prepare and review your notes to help you remember what happened.

It is typical in a car wreck or truck crash case for both sides to send each other interrogatories in the discovery process. This process is where both sides gain information and documents to help each side understand the facts and positions of each party in the case.

Interrogatories are commonly used. These are written questions that the other party must answer in writing under oath. They can range from the simple (“State your name, address, date of birth”) to the more complicated (“State everything you did as soon as you realized you were losing control of your truck on Interstate 20 in Birmingham”).

The idea of interrogatories is that it allows each party, in an inexpensive way, to question the other party. On purpose of questioning the other party is to find out facts – such as “Did you consume any alcoholic beverages in the 24 hours before the wreck”. Another purpose is to find out the position of the other party – such as “Do you contend that the actions of any other driver contributed to the wreck”.

Vicarious liability often comes up in lawsuits in Alabama, particularly against trucking companies. We are often asked by clients who have done some research before hiring a lawyer what this term means in general and what it means for their case in particular.

The simplest meaning of vicarious liability (or also known as “respondeat superior”) is that one person (the master or principal) is held legally responsible for the tort or wrongful act of another (the servant or agent). We will discuss in another blog post the idea of “negligent entrustment” which is another manner in which one person can be held legally liable or legally responsible for the wrongful acts of another but generally vicarious liability is how this occurs.

While there are certainly exceptions to this the basic gist is that an employer or principal has hired an employee or agent and if that employee or agent commits a tort while working for the employer or principal, then the employer or principal is liable. So, if a truck driver runs a red light while driving for FedEx, for example, then FedEx is responsible for that wrongful conduct. It doesn’t normally matter if FedEx tells its drivers not to run red lights. It doesn’t matter because FedEx is getting the benefit of having its employees act on its behalf and it must compensate those Alabama residents who are injured by the negligence of FedEx employees.

For most of our clients the lawsuit we represent them in is the only lawsuit they have ever been involved in so it is a little confusing the first time they hear of a “summary judgment” motion. This is a relatively routine filing in most cases (although it is not often filed in car wreck cases).

Basically, the motion for summary judgment asks the court to look at all of the evidence, and give the benefit of the doubt to the non-filing party (normally the plaintiff) but then it asks the court to rule that even with this benefit of the doubt, no reasonable jury could rule with the plaintiff. So, you might think of it this way, if there was a trial the judge would “summarily” enter judgment for the defendant. But instead of taking up the jury’s time, the judge will enter summary judgment and the case will (normally) be over.

A simple example – if the plaintiff says he was not involved in the wreck but yet sued the defendant for the wreck, no reasonable jury could ever rule in the plaintiff’s favor.

The trial is now almost over as we have selected a Jury, made opening statements, put witnesses of by direct examination and we have cross-examined the other side’s witnesses, we have made our closing argument, and now it is time for the Judge to instruct the Jury on the law.

Before this happens, we will have had a Jury Instruction Conference with the Judge to give the Judge what we believe the law should be. The defendant will do the same. Sometimes there is a lot of disagreement; at other times there is not much disagreement, but in any event, the Judge will make his or her decision as to what the law is in this case. If there are instructions that we think are wrong that are to be given or that we feel should be given that the Judge refuses to, then we will object to those to preserve that issue for possible appeal.

After we make closing argument the Judge will read the Jury instructions. Some of these are difficult to understand while others (and this is the trend particularly in Jefferson County with the presiding Judge Scott Vowell) will make these instructions in as plain of English as possible. We applaud this trend as we want the Jury to understand what the law is.

Alabama consumers who have been injured in a car wreck or a truck wreck often assume, quite naturally, that the jury will know that the defendant who caused the wreck and caused the injuries has insurance through State Farm, AllState, etc. The jury, after all, knows that the injured victim has health insurance such as Blue Cross but it is quite surprising to find out that the jury can never know that the defendant has insurance.

The reason that is always given for this rule is that a jury might decide against the defendant, not based on the facts but on whether the defendant has insurance, figuring “Well, here she has insurance, so it won’t really hurt them if we give a verdict.” We have never met anybody with this actual mindset as everybody understands if you award money when the plaintiff is not entitled to it, then that can have a bad impact upon the system and insurance rates. But what happens is since the jury does not know about the insurance, they look at somebody and oftentimes they will take the opposite approach of assuming that the person cannot pay and therefore they do not find against the defendant even if the defendant is at fault.

Trial judges do not have any discretion in this matter and until the law is changed, this is the way it will be. If you have been in a automobile accident or in a truck wreck or otherwise suffered a personal injury, particularly if it is due to the negligence of an individual, then you do need to keep this in mind as you are evaluating potential settlement offers.