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About Trials in Oklahoma and Arkansas

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What happens if your case goes to trial?

Even though most cases are settled before a lawsuit is filed, some cases go to trial because the insurance company either doesn’t make an acceptable settlement offer or the insurance company claims the incident was your fault. When that occurs, there are several things a person contemplating a lawsuit should be aware of before proceeding.

  1. You have to sue the responsible party, not their insurance carrier.

In a car wreck case, that means you have to sue the other driver. In a dog bite case or other event that invokes the other person’s liability insurance, such as homeowner’s insurance, business insurance, boat insurance or ATV insurance, you still have to sue the individual or company that is responsible, not their insurance company. Even though the other party has insurance, you have to sue the individual or company due to the way the law is written.

Due to rules of evidence, the jury is not allowed to know that the other party has insurance. As a practical matter, lawyers rarely pursue cases unless insurance is involved due to the inability to collect any judgment that is entered. Nevertheless, the jury is kept in the dark about the existence or amount of insurance available to the defendant in a lawsuit.

As far as the jury knows, anything they award comes straight out of the defendant’s own pocket. In reality, this is not the case. The verdict is paid by the insurance company and the defendant rarely has to pay anything out of their own pocket. If the defendant does have to pay out of their own pocket, they may have a right to sue their own insurance company to be reimbursed. This occurs if the insurance company unreasonably exposed their insured to having to pay a verdict if the plaintiff was willing to settle for the amount of insurance available.

This is one reason why it is important to have an experienced trial lawyer handle your case. Some people unknowingly think it is easy to pursue the case on their own because they believe that all they have to do is sue the other driver’s insurance company and the jury will rule in their favor since they are suing an insurance company. It is not that simple. The jury never knows about insurance. A skilled lawyer can make sure the proper party is sued and the evidence is presented correctly to avoid having the case dismissed by the court.

  1. Attorney’s fees are deducted from your damages.

Another fact that people are often misinformed about is the recovery of attorney’s fees. In a personal injury case, even if you win at trial, you have to pay your attorney. The other side doesn’t pay your legal fees. Unfortunately, the law prevents the jury from being made aware of this fact. As a result, when the jury is determining the amount of money to award, it is not aware that you will not receive the amount the jury awards you. To the contrary, since we handle cases on a contingency fee basis, after the jury returns their verdict, you have to pay your attorney’s fees from the verdict. Normally, the amount you pay is at least one-third of the verdict. In addition, you have to pay your attorney the out of pocket expenses the attorney incurred getting your case ready for trial. In a routine car wreck case, those expenses can easily exceed several thousand dollars. In a more complex case, the expenses can run hundreds of thousands of dollars due to expert witness fees and deposition costs.

As a result, even if a jury believes your injury entitles you to damages of $50,000.00, you would end up keeping less than two-thirds of the recovery. In addition, any unpaid medical expenses are generally paid from that recovery as well. If your medical expenses are $15,000.00, you can see where you are very quickly reduced to keeping less than one-third of the recovery for yourself.

  1. If your medical bills were paid by health insurance, you probably have to pay back your health insurance carrier from the verdict.

Another problem that can sometimes occur at trial is if the jury believes your medical bills were paid by health insurance. In that case, they may decide not to include those expenses in their verdict since the bills have already been paid. What the jury doesn’t know is that your health insurance will almost always be waiting to be reimbursed after the trial is over. This is another reason why a skilled trial lawyer is necessary. Proper presentation of the evidence and argument by counsel can reduce the likelihood that a jury will inadvertently award you less money than they intended for you to receive.

  1. The lawyer representing the defendant is paid by the insurance company.

Insurance companies have attorneys available to them to represent the people they insure if a lawsuit is filed. Some insurance companies have their own staff attorneys and others hire outside law firms to represent their insured. Either way, the person you are suing is going to be provided an attorney by the insurance company. The jury won’t know this fact either. As far as the jury knows, the person you are suing went out and found their lawyer and is paying them by the hour to represent them. This can often result in the jury feeling sympathetic to the defendant and thereby reducing the amount of money they award since they believe the defendant has already paid a lot in attorney’s fees. Again, with proper representation by a skilled trial lawyer, the likelihood of this occurring can be substantially reduced.

  1. The other side’s lawyer may try to make it look like your lawyer and your doctor are trying to make something out of nothing.

One common tactic that attorneys representing the other party employ is to try and make it look like your attorney and your doctor are working together. They will do this by making it known to the jury that you were referred to your doctor by the attorney, a common occurrence. Lawyers often have to refer their clients to a doctor because many doctors will not see patients that were involved in some type of accident. Many doctors will refuse to treat people involved in the legal system because they do not want to testify about the care they provided to the plaintiff.

For instance, in a car wreck, the other driver’s insurance company will not pay the doctor that treats you until after the case is settled, which can be years after the treatment is provided. Most doctors aren’t willing to wait that long. As a result, lawyers have to find doctors who are willing to place your well-being above their own immediate, financial interests.

Unfortunately, the other lawyer will argue and insinuate that you would not have had any medical bills if the lawyer had not sent you to a doctor. Even though you know that is not the case, the jury may not. Often juries will believe the other lawyer’s argument and award very little money to you as punishment for the perception that you or your attorney ran up your medical bills to get more money at trial.

Again, proper representation is critical in this area. If handled correctly, the likelihood of this occurring can be substantially reduced by a skilled trial lawyer.

  1. The other side will argue you weren’t hurt if your car didn’t sustain a lot of damage in the wreck.

If your case involves a car wreck and there wasn’t very much damage to your car, the other lawyer will remind the jury of this every chance they get. They will argue that it was just a “bump” or “tap” and that you couldn’t have been hurt. In reality, studies have shown time and again that the amount of damage to a vehicle is not an accurate predictor of whether someone in the car was hurt or not. However, unless your lawyer is highly skilled in this area, many times it is difficult for the jury to understand this concept because the law requires that evidence of this type be provided by an engineer’s testimony.

As a practical matter, engineers that possess the necessary legal qualifications to testify in this area charge several thousand dollars to prepare for the case and testify at trial. Because of the expense involved, it is often not economically feasible to pay an engineer thousands of dollars to testify about this concept.

Hopefully, the jury will understand that a “minor” impact can cause serious injuries once they have seen the evidence. It happens every day. For instance, in a rear-end collision your vehicle is instantly accelerated to the speed the vehicle behind you was traveling. So, if the vehicle that hit you was traveling five miles per hour and you were sitting still, your car was immediately, in milliseconds, accelerated to five miles per hour. When that occurs, your torso is immediately pushed forward by the seat back. This causes your head, which sits on top of your neck like a pendulum, to immediately be flung backwards and then forwards in a rebounding motion. The structures in your neck are stretched beyond their normal limits causing them to be damaged. Those can be minor injuries or they could be extremely severe, depending upon several factors.

If your head was turned to the right or left at the time of impact, your neck doesn’t have as much range of motion. You can demonstrate this yourself by comparing how far your head will tilt back when looking straight ahead versus turned to the side. As a result, if your head is turned, your neck doesn’t have to bend as far back before it goes beyond its normal range of motion, thereby causing injury.

  1. The other side will almost always call a doctor to testify who will disagree with your doctor.

The insurance company’s lawyer will hire a doctor to examine you. The doctor has normally worked with the other lawyer numerous times over the years. The doctor usually disagrees with your doctor about the cause or extent of your injuries. Many of these doctors make millions of dollars testifying for insurance companies and their attorneys.

One of their favorite strategies is to blame your problems on pre-existing medical conditions. In a case where a person suffered a herniated disc, the other side’s doctor will almost always say that you had pre-existing degenerative disc disease before the wreck ever happened and that is what is causing most of your problems. In reality, most everyone has some degenerative changes in their spine. Degenerative disc disease is a worthless term. Some doctors will call a herniated disc a degenerated disc, even though it was caused by trauma. They like to use the word “degeneration” over and over and over again. It seems that they do this because they know the jury will not associate degeneration with an injury from a car accident.

Even in a person with degeneration, when trauma occurs, the degeneration allows the neck or back to be more susceptible to injury. As a result, the degeneration, which was not causing any problems before the accident, now causes the person to start hurting and often need surgery. So, even though it may be true for the doctor to say you have degenerative changes, that is not the whole story. The important part of the story is that, but for the trauma, your neck or back would not be hurting.

The law says that if you have a pre-existing condition, such as degenerative disc disease, the defendant is responsible for any aggravation of that pre-existing condition. It is critical that your lawyer understand this concept so that the case can be presented properly to the jury. Thus, even if you had degenerative disk disease before the accident, the defendant should be responsible for your damages because if they had not caused you to injure your neck or back, you would still just be one of the many people walking around with degenerative changes in your spine without problems.

As you can see, your lawyer can help you avoid many pitfalls that could occur in a trial. Carr & Carr Attorneys can help you avoid these types of pitfalls at trial so that you can have a jury render a fair verdict. By no means is this a guarantee of success. Neither our firm nor any other lawyer can guarantee you any type of result. However, we can tell you that with proper representation, your odds of succeeding at trial are definitely improved.

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