Personal Injury FAQ

• What do you mean by "personal injury"? What sorts of cases does this include?
• How much do you charge for a personal injury case?
• What are case costs?
• How much is my case worth, and will you guarantee success?
• My insurance agent says I can handle the case myself without a lawyer. Is this a good idea?
• If you take my case, what will I have to do?
• How long will it take?
• Can I talk to you about my case for free?
• Do you always pay the expenses up front?
• What are typical expenses in a personal injury lawsuit?
• What is the process?
• How much is my case worth?
• What if I don't live in New York?
• What is negligence?
• What does the term "liable" mean?
• What does the term "reasonable person" mean?
• What does 'duty' mean in a lawsuit for injuries?
• What is contributory negligence?
• What is comparative negligence?
• What is the "assumption of the risk" doctrine?
• What is strict liability?
• What happens in a deposition?
• What is premises liability?
• What is “serious injury” and the “serious injury threshold” that people talk about when discussing car crash cases?

What do you mean by "personal injury"? What sorts of cases does this include?

"Personal injury" is a broad term that means any kind of accident or occurrence that leads to bodily injury. Examples include:

• car and truck accidents
• traumatic brain injury
• medical malpractice
• injury from a defective product (called a product liability case)
• injury from defective medicines (e.g., Vioxx, Fen-Phen, Chantix)
• wrongful death cases

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How much do you charge for a personal injury case?

We charge on a contingent fee basis. That means you will not pay us anything unless there is a settlement or a winning verdict at trial. Typically, when we win your case, our fee is one-third or 33.3% of the total recovery, in addition to "case costs." Medical malpractice cases are less due to regulations from the courts that limit legal fees from 30% down to 10% depending on the size of recovery for the client.

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What are case costs?

Case costs are money that we pay out to others in order to get your case ready for trial. Examples would be the filing fee required by the court and expenses for depositions and experts. Case costs vary depending on the complexity of the case, but we always have an up-to-date balance available if you want it. We will be happy to answer any of your questions about fees or costs before you decide to hire us.

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How much is my case worth, and will you guarantee success?

The "value" of your case depends on many factors, such as the extent of your injury, the amount of your medical bills, and your condition after you have finished treating. The calculation also involves the ability of the other party to pay a judgment, whether you played any role in causing the accident and the strength of the evidence that the other party is responsible.

We will not take your case unless we think it has a good chance of success. This is simple common sense. Since we are only paid if we get you compensation, we do not work on cases we do not believe will be successful. Even so, there are no guarantees. Ultimately your case will end up in the hands of a judge and a jury. We can never guarantee they will make the decision we believe they should. All we can do is give you a fair assessment of the outcome of your case based on our experience, the injury itself, and what jury verdicts have been achieved in cases similar to yours.

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My insurance agent says I can handle the case myself without a lawyer. Is this a good idea?

Since a consultation is free, it won't hurt to ask us if we think we can help. Having worked as lawyers for many years, we have a bias against insurance companies and what they might tell you. This bias is based on our knowledge that no matter how nice insurance adjusters sound on the phone, they have one goal in mind above all others--to pay you as little as possible.

Insurance companies do not work for you. They rarely help you figure out your legal rights, and may not fully understand them. They rarely give you a fair assessment of the value of your case. If your injuries are significant, there are several reasons why a good lawyer can help you. When you hire a lawyer who is willing to take a case to trial, value is added to your case in a number of ways. A good lawyer will seek every category of damages that applies to your case, and find ways to support those damages with evidence that will be admissible in court.

The threat of trial itself adds to your bargaining power. Make no mistake: the insurance company knows that it's almost impossible to take a case to trial on your own.

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If you take my case, what will I have to do?

If you hire us to be your lawyers, you will play a very important role in preparing and analyzing your case. We will ask you to help us gather the information that we will use to support your case. You will be informed of our plans and the important decisions will be made only after consulting with you. We may ask you to take part in a focus group to help us understand the strengths and weaknesses of your case from the perspective of potential jurors.

Just as we will keep you informed about your case, you will need to keep us informed about your medical treatment and your physical limitations. After we file the lawsuit, you will have to answer questions in writing by helping us prepare a document called a verified bill of particulars. You will also have to sit for a question-and-answer period with the opposing lawyer called a "deposition." (Of course, we'll prepare you first, find a time that is convenient for you, and sit next to you during the deposition). You may have to be evaluated by other doctors. If your case does not settle, you will have to be present for the trial.

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How long will it take?

Even though many cases settle before trial, this does not usually happen until both sides have prepared the case. Generally, lawsuits take about two years from filing to trial. This can vary significantly in either direction based on the complexity of your case, the congestion of court dockets, and other factors.

Our advice to our clients? Be patient. We are always willing to tell you exactly what is happening with your case. In the meantime, you have to trust that we are working hard for you.

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Can I talk to you about my case for free?

Yes. If you want to talk to one of our lawyers about a case, just call on the phone and ask. After you have answered a few basic questions with one of our staff members, we will be happy to discuss your case for free on the telephone or in our office. Generally, it will take only ten to thirty minutes for us to decide whether or not we can help you.

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Do you always pay the expenses up front?

Usually, but not always. There are two rare situations where we don’t. First, some personal injury claims are not very strong, but we might still be willing to work on a contingency fee basis. In such claims, the client will have to pay the expenses and we may also require an up-front fee. The other situation is when there is a good offer and the client refuses to accept it against our advice. We would then require the client to cover all future expenses and reimburse us for past expenses.

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What are typical expenses in a personal injury lawsuit?

In New York personal injury lawsuits, filing fees usually total less than $500. Deposition transcripts also usually total less than $500. The biggest expense is when a lawsuit goes to trial and we have to pay doctors and other experts to testify. We have paid anywhere from $300 to $7500 for a doctor’s time, and some doctors may charge more. Other expenses include process servers, investigations, medical records, and meals. We do our best to limit expenses. This is particularly important in cases with lower values. Some cases are more complicated and expenses are higher. Typical reasons why you might see increased expenses are the need for additional experts, such as for accident reconstruction, or where we need to have more than one doctor testify.

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What is the process?

First we usually negotiate with the insurance company. Then we file a lawsuit. For a few months we exchange paperwork with the insurance company attorneys. Next come depositions, where they question our client and we question theirs. This usually happens in a lawyer's office. Other witnesses might also be deposed. Then the insurance company might have our client examined by their doctor (an IME, or independent medical examination which is usually not that independent or objective and is often time tilted strongly in favor of the defendants). Last is trial. A lawsuit might settle at any point along the way.

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How much is my case worth?

Every case is different. We have to consider various factors to assess the value. In some cases, liability (who is at fault) is unclear and the injuries are not severe. These cases may well be worth nothing, or have a low enough value that it would not make sense for us to take the case. In other cases liability is clear and the injuries are very severe. In such cases the amount of insurance becomes an important factor.

In a car crash case, if the at-fault driver has low insurance coverage ($25,000 is the minimum in NY) you may have a claim against your own insurance company under "underinsured motorist" coverage. When there is limited coverage and we have a good case, we will push the at-fault insurance company to settle quickly. If they fail to conduct themselves properly, this can lead to a "bad faith" claim that would allow us to get more from the insurance company than the insurance coverage.

Bad faith cases are rare, and complicated to set up. In general, we do not expect to get more out of a case than the available insurance coverage. If you have a case where the injuries are very severe, it is very important to retain an attorney who knows how to pursue a bad faith claim.

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What if I don't live in New York?

This is not a problem. Our office uses technology to help us work with clients from all over the United States. We have had clients that lived in Texas, Louisiana, Tennessee, Pennsylvania, Missouri, Florida and South Carolina. Wherever you are, we can communicate with you via email, phone, mail, FedEx, Skype and many other mediums which keep us in close touch.

If the case goes far enough you would have to come back to this area. We can work to limit the amount of travel. In a typical case for a distant client, you would have to come here at most twice -- once for depositions and the IME, and once for the trial. If we can settle before depositions, you will not have to come at all. Your travel expenses would be an expense of the case and you would be reimbursed for them from any settlement or award.

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What is negligence?

In its most simple definition, it means that someone was careless and as a result of being careless, someone else was injured. Negligence serves as the basis for a personal injury lawsuit.  Negligence is any conduct that falls below the recognized standards of behavior established by law for the protection of others against unreasonable risks of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under the same or similar circumstances. To establish negligence, a plaintiff (the person injured) must be able to prove or demonstrate in court that the defendant (the person being sued) had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant’s negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.  For example, the driver of a tractor trailer truck hauling a large piece of machinery owes a duty to other drivers on the freeway to be careful.  If the truck driver failed to strap down the machinery and it fell off the truck, landing on a passing car and injuring the driver of the car, a personal injury claim could be made based upon the negligence of the truck driver.

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What does the term "liable" mean?

The term liable generally means that a court has determined individual, company or some other entity caused, and is responsible for, another person's injury.  When a defendant is found liable, he or she is generally obligated to compensate the injured party for their damages.  The term "liable" is often confused with “guilty." However the term "liable" is used in civil cases and the term "guilty" is only is used in criminal cases.

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What does the term "reasonable person" mean?

A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under the same or similar circumstances. The hypothetical reasonable person provides an objective by which the conduct of others is judged. Using the truck driver example above, the driver who failed to strap down the heavy machinery on his truck would be considered negligent if other truck drivers hauling the same machinery would typically strap such machinery down.

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What does 'duty' mean in a lawsuit for injuries?

When talking about negligence, duty is the legal obligation that the law imposes on us to protect and respect the safety of others around us. That means doing something that a reasonably prudent person would do under the same circumstances. For example, when we drive a car, we owe a duty to drive safely to everyone else on the highway and to the pedestrians around us.  Similarly, when a company manufactures a car, it has the duty to make sure it is manufactured safely. The extent of a duty to act safely, though, is often the complicated part of a lawsuit.

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What is contributory negligence?

The term “contributory negligence” is used to describe the actions of an injured person that may have also caused or contributed to his injury. For example, if you were hit by a bike while crossing the street, but you jumped into the street without looking first then your carelessness will be taken into consideration and any money that you receive may be discounted because of your own carelessness. If you are found to have contributed to your own injury, the rules in some states will prevent you from collecting any money. Many states have done away with the concept of contributory negligence altogether and instead use the concept of “comparative negligence.” Comparative negligence looks to the degree of fault of each party in determining whether an award is justified in the case and what amount the award will be.

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What is comparative negligence?

Comparative negligence works on a percentage basis to assign a degree of fault for the injuries suffered. For example, in a broad-side car accident case where the injured person is awarded $100,000, the driver who broadsided the other car migth be found to be eighty-percent responsible for the accident because of, say, turning on a yellow light. The injured plaintiff could also be found to be, say, twenty percent responsible for not exercising caution by failing to look both ways.  In such a case, the award would be reduced to $80,000.

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What is the "assumption of the risk" doctrine?

If you have knowingly and voluntarily assumed the risk inherent in a particular action that caused an accident, you cannot sue the other person for negligence if you get hurt. For example, if you see a sign that says “do not touch – hot” but you touch the object anyway and burn your hand, you may be found to have “assumed the risk.”  This would prevent you from recovering any money.  Another common example of assumption of risk is participation in a sport in which certain risks are inherent to the game. For instance, if you are playing football and you get tackled and break an arm, you may not sue the person who tackled you. On the other hand, if you are playing tennis and a fight breaks out and you are hit in the head with a racket, you may be able to sue the person who hit you, since the assumption of risk does not cover any injury that was intentionally inflicted and not an inherent part of the game.

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What is strict liability?

Some persons or companies may be held “strictly liable” for certain activities or products that harm others, even if it can’t be shown they acted negligently or with intent. This theory is important because it protects the community from dangerous products or activities and provides relief for injuries. Strict liability is applied to two different situations which the public should be made aware. These are strict products liability and liability for people engaged in “ultra hazardous activities.”

Strict products liability is applied against merchants of a product who sell abnormally dangerous products. A product may be abnormally dangerous because there is a defect it its design such as a faulty brake pedal, or simply because it lacked adequate warnings. A product may also be abnormally dangerous because of a manufacturing defect which resulted in a single defective product entering the stream of commerce. An example of this is a soda bottle entering the stream of commerce that contains a glass shard. In either case, both the manufacturer and merchant are liable for the sustained injuries that were foreseeable at the time the product was designed and manufactured. It is important to note, casual sellers of products such as those who host garage sales will not be strictly liable as merchants.

Strict liability is also used to protect the public from ultra hazardous activities. An ultra hazardous activity is one that involves a risk of serious harm which cannot be eliminated by the exercise of utmost care. Classic examples of ultra hazardous activities include blasting using dynamite or keeping wild animals. The person who engages in an ultra hazardous activity will be liable for all damage and injuries resulting from the activity regardless of whether they took every single possible precaution imaginable.

If you have been injured by a defective product or as the result of an ultra hazardous activity, it is important to contact a personal injury attorney immediately. Injury claims are limited by a state’s statute of limitations and failure to file within this period may result in the forfeiture of your claim.

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What happens in a deposition?

If you file a personal injury lawsuit, the attorney for the defendant will likely “depose” you or take your deposition.  A deposition is the process in which the defendant’s attorney asks you questions about the accident and your answers are recorded.  You swear to tell the truth before you answer.  A deposition is usually done in a conference room.  Later, if you testify in court, your answers will be compared to your deposition testimony and the defendant will question you as to any inconsistencies.

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What is premises liability?

The term "premises liability" generally refers to accidents that occur due to the negligent maintenance or unsafe or dangerous conditions upon property owned by someone other than the accident victim. Many states have laws that generally require landowners to maintain their property in a manner that does not cause injury to those that, for various reasons, visit the property. Often, these laws pertain to both business owners and homeowners. In many states, property owners and business establishments have been found to have a duty to provide a safe environment for individuals on their premises. If you are injured because a property owner or a business establishment fails to provide a safe environment, you may have a right to bring a claim for various damages incurred due to your injury. In many states, these damages include pain and suffering, medical expenses and lost wages. Premises Liability cases involve injuries sustained on the property or premises of a negligent third party. These types of cases often involve slip and fall accidents, which usually occur when a defective condition, foreign substance or object causes a fall. Crucial to settlement recovery is being able to show how long the defect or substance was there, how visible it was, and how much notice the owner had of the dangerous condition before the accident happened.

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What is “serious injury” and the “serious injury threshold” that people talk about when discussing car crash cases?

Section [§5102(d)] of the New York State Insurance Law defines seven standards for a serious injury which must be met for a person to succeed in a lawsuit related to car crashes.  Therefore, a person must satisfy at least one of these seven definitions before he or she can pursue a lawsuit:

• Personal injury which results in death
• Dismemberment; significant disfigurement
• Fracture
• Loss of a fetus
• Permanent loss of use of a body organ, member, function or system
• Permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system
• A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

You will notice that the law defines items one through four clearly and makes those items relatively easy to determine. However, items five, six and seven leave room for debate and argument. In many cases, the ability of a person to meet the serious injury standard depends on meeting one of the requirements listed in items five through seven.

Since the law does not make these definitions clear, the Courts have defined them through rulings by judges, which is known as “case law.” Proving that you have suffered a serious injury in the eyes of the court requires your attorney to review your medical files and consult with your doctors. Given that diagnosis and analysis, your attorney will then research the case law to find cases that show that your injury does or does not meet the legal threshold for a serious injury.

The court will look at several key issues in assessing an injury:

• Do the damages meet one of the seven standards listed in the State Insurance Law?
• Were there pre-existing injuries and how do they affect this injury?
• What is the nature of the injuries and their impact on the plaintiff?
• Were there gaps in treatment and why?
• Are the limitations quantified and documented?
• Are the medical records certified?

The case law is constantly changing. This situation certainly clouds the threshold for a serious injury in New York creating doubts for all parties, especially plaintiffs. An attorney handling auto accidents or other accidents that involve the threshold requirement needs to stay on top of all court decisions and research the particular application of the case.

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