Dennis C. Hogan
What Should You Expect If Your Injury Case Doesn't Settle with the Insurance Company
Knowing the alternative to one course of action helps in making a decision about how to proceed. That is why I often hear the question: What will happen if we file suit?
One strategy for dealing with the insurance adjuster is to be ready to file suit as soon as there is any indication things are not going your way. Generally speaking, filing suit would result in dealing with a different person because the adjuster handling it before we file suit will give up the file to either another adjuster or the insurance company’s defense attorney. However, there is no reason that a change in file handler will change the amount of money the insurance company puts on your case.
The other strategy is to attempt to negotiate the settlement of the case without filing suit knowing that suit can be filed if the negotiations fail to produce an acceptable offer. At that point the client is weighing the unacceptable offer verses the undetermined benefit of filing suit. Therefore, that is a good point at which to ask what is ahead for the client if we filing suit.
The first step is writing a complaint to be filed with the writ in the Court. The complaint can be written at any time prior to its use. The complaint is filed with a fee paid to the court. The filing fee in New Hampshire Superior Court is $280 and the Circuit Court District Division is $195.
Each document filed with the court must also be given to the defendant in the case. This is called ‘serving the defendant’ or ‘service of the defendant.’ Service is preformed by the sheriff in the county where the defendant receives the service. The charges for service vary based on the cost to the sheriff to give the defendant the copies of the complaint. You can expect that expense to be between $60 and $200 and more if there are multiple defendants and defendants which are out of state businesses.
The service paper includes the writ and Court instructions for the defendant to file an appearance by a certain date. The defendant almost always files an appearance but if the defendant fails to file an appearance we can ask for a “conditional default” which starts the process of winning the case without the normal work of litigation.
Once the defendant has filed an appearance the court will establish a date for the hearing to establish a trial schedule. The trial schedule gives deadlines for events to happen but it does not prohibit the plaintiff from sending the defendant a lot of questions, called interrogatories before any deadline occurs. The interrogatories are an opportunity to ask initial question of the opposing party to establish the basic facts as told by the opponent. The defendant will also send a set of interrogatories to the plaintiff to answer in order to establish the basics for the plaintiff’s case.
After the interrogatories are answered the opponents have the opportunity to have the principal party from the other side sit down and answer question under oath and face to face - this is called taking a deposition. The defense almost always takes the deposition of the plaintiff because it is an opportunity to weaken the plaintiff’s case, take an appraisal of whether a jury will like the plaintiff, and possibly convince the plaintiff their case is not worth as much as they hoped. Some plaintiff’s feel that giving a deposition is unpleasant and others think nothing of it because they are telling their story. Either way, it is a required part of the litigation process.
A medical expert opinion is necessary in injury cases. The opinion can be supplied by the injured party’s treating physician or the plaintiff can employ an expert to state within reasonable medical probability that the treatment is a necessary consequence of the injury from the accident. In a case in which the injury is complex the defense may want to take a deposition from the plaintiff medical expert. The Plaintiff Attorney will go to that deposition but that is not something that the plaintiff needs to attend.
Depositions necessarily have stenographers to record what is said and then provide a written transcript to be used by both sides as the litigation continues. Therefore, there is an expense which varies based on the amount of time stenographers are necessary. That is contingent on the number of people from whom depositions are taken and the amount of time each depositions takes to conduct.
After the opposing sides have exchanged all the information that they expect to have for a trial the parties are required by New Hampshire Court rules to participate in mediation. Mediation is a meeting of the opposing sides to see if they can come to an agreement to settle the matter instead of bringing the matter to the judge and jury. Some of my clients are surprised that the defendant who actually caused their injury is not at the mediation. The reason is that in most cases the defendant has insurance. The defendant made a contract with their insurance company that says if the defendant is liable for damages or an injury to another person, the insurance company will compensate the plaintiff. If the matter goes to suit, the insurance company pays for the legal fees of the defendant. Therefore in mediations the defense is represented by the insurance company adjuster and the defense attorney. In the case of a corporation that is self insured, the company sends a representative not the person who made the mistake. If two uninsured persons were in a mediation they would have to be their for themselves because there would e no insurance involved in the case.
A Mediator is an independent person who has received training on how to conduct a mediation. That person does not have to be a lawyer however some of the most successful are lawyers and often even retired judges.
Mediation starts before the day of the mediation meeting. Both sides are required to submit a mediation statement to the mediator. It is an attempt to give the mediator your side of the story so that the mediator can prod the other side toward your position. For injury cases the compensation is money. So the negotiating comes down to how much the insurance company or corporation is going to pay. There is an old saying about negotiations which is true of mediations: in a successful negotiation no one get everything they want but everyone gets enough.
If the parties do not come together for an agreement at Mediation then the case proceeds to trial.
Prior to trial in the NH Superior Court the parties go to the court room with the judge and select a jury. The Court wants to pick 14 people from the jury pool to have the 12 member jury and two alternates. The people in the jury pool are picked at random from a list of people registered to vote or license to drive in NH. The Court asks questions (called voir dire) to elicit responses that show the potential jurors are or are not biased. Those who appear unlikely to overcome a bias for or against either party are dismissed. The jury and two alternates should be people with no bias for or against the parties to the case.
If the case is in the Circuit Court District Division then a judge alone serves as trier of fact in addition to the judge’s role as trier of law.
Plaintiff’s have the burden of proving their case to the trier of fact by a preponderance of the evidence. In other words the judge in the Circuit Court or the jury in the Superior Court must think your story is more likely than not the truth in order for you to receive an award of damages. Since the plaintiff has the burden, the plaintiff speaks first in the opening statement and gets the last word in the closing statements. Plaintiff presents their case first before the defendant puts on whatever case they have in defense.
After the closing statements the judge goes through instructions on the law. The court room door is locked so no one comes or goes while the judge is giving jury instructions. Attorneys not on the case, hate to get struck in the court during jury instruction because in is boring. The judge is reading the instructions from a paper that the attorneys in the case and the judge have discussed prior to this phase of the case. Jury instructions are prewritten paragraphs you can find in a book of Jury Instructions which state the law so the jury understands each point of law relevant to that case.
The jurors deliberate by themselves to discuss and vote on the facts as argued by the attorneys as they related to the points of law explained by the judge. In NH decisions of the jury must be unanimous.
From filing a writ to a jury verdict will take at least 18 months. Both side have reasons to avoid each step along the way. However, if agreement is not possible then each side will be compelled to take it all the way to a jury and, so long as there are no arguments as to the law applied, live with the result. The defense risks that the jury could give the plaintiff more money than the plaintiff dreamed possible while the plaintiff risks that the jury could send the plaintiff away with nothing.