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TO File a lawsuit or not... That is the question

Things to Consider before you file a lawsuit

There are many factors that you and your attorney must consider before you decide to file the lawsuit for personal injuries.


  1. Is the offer enough to cover your medical bills and some money for pain and suffering?
  2. Have you made many claims in the past?
  3. Have you injured the part of the body you injured in the accident before the accident?
  4. Are you ready for a long process before you get your settlement?
  5. Are there extraneous circumstances that make it more advantageous to file?


There are many other factors we can advise you on which will assist you in making a decision.  

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WHAT TO EXPECT IF YOU FILE A LAWSUIT

The Process can be long and tough

Filing a lawsuit because of another person's negligence can be frustrating and overwhelming, but we're here to ease the mystery and fear of active litigation. 


Filing is never easy for the client and in a perfect world we wouldn't have to, but the reality is, some of the cases we handle will have to be filed. We prepare each case as if it will be heard by a jury, but we always hope that the insurance company settle without putting our clients through the drawn out process of litigation. 


Some tips that may be helpful to all clients, whether or not their injury case turns into a lawsuit. 


1. Keep all receipts from your doctors visits or from your health insurance. 


2. Stay off social media of any kind during your case.


3. Be prepared to remember everything and anything related to your injury and accident.

 

4. Understand that much of your past will be brought up.


5. Everything you tell your attorney is confidential, so please tell him or her everything so they are not                                             caught off guard or without a defense/objection to the issue. 


6. Stay calm as the process can be a long and arduous one.  

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HOW TO PROVE NEGLIGENCE

You Must Prove the Five Steps of a Negligence Claim

 1.  Duty

  • This is the duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeable harm others.  


2.  Breach 

  • Breach of the duty of care to act as a reasonable person to avoid harm. 


3.  Actual Cause / Cause in Fact 

  • The actual cause that flows from the accident. Example: The cause of the accident and injury is the car hitting the other vehicle.


4.  Proximate Cause 

  • The proximate cause of an injury is the primary cause, or that which, in a natural or continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened. 
  • Best way to think about proximate cause is if the harm done would be a foreseeable consequence to the action. An accident happening when you run a red light would be a foreseeable consequence of this action. 


5. Damages 

  • Injuries the victim suffered, including hospital bills, doctors bills, lost wages, mileage to and from doctor visits (special damages or economic damages). 
  • Pain and suffering, loss of enjoyment (general damages or noneconomic damages). 

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what to expect from defendant's counsel

Tactics and pitfalls to watch out for by Opposing Counsel

These are a few examples and not a complete list of tactics available that opposing counsel may use

 

  • Try to show a jury that plaintiff has pre-existing injuries thus limiting or negating full value of the medical bills (proximate cause). 
  • Claim the plaintiff was partially, as much as, or more than at fault then defendant in regards to damages (apportionment). ** Georgia follows modified comparative fault - plaintiff held to be 50% or more at fault, lose. 
  • Claim medical bills are unreasonable and not customary (damages). 
  • Will attempt to show there is a "conspiracy" between attorneys, medical providers, and the client to overtreat and run up the bills. 
  • If you have a criminal past, it may come up even if the matter is not relevant to the case at hand and cannot come into a trial. ** Certain moral turpitude and felonies may be allowed. 
  • Will try to use existing social media posts to show you are not as pain as you claim to be. 
  • Will delay the case due to a high case load and scheduling issues. 
  • Will use any statement voluntarily given to an adjuster or police officer against you at trial. 
  • May try to see if they can push plaintiff's buttons in a deposition, so they know how to get to plaintiff in trial making you look bad in front of the jury.


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The best defense is a good offense

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Honesty about your past

Do not hide anything about your past that you think may come up. Tell your attorney about old injuries or past criminal activity so they can address it and get in front of it. 

Let the Jury know certain potential issues upfront

Anything the defendant can use to paint the plaintiff in a bad light should be told immediately to the jury in opening statements, such as previous injuries or past criminal matters. Only matters plaintiff feels could come into the trial that the judge allowed in needs to be told up front to the jury. If not, defense counsel will bring it up and it'll look like the plaintiff is hiding something. 

Pictures on social media should not be too concerning

Normal everyday pictures and events are nothing to be worried about in a trial regarding injuries, however, if you are taking pictures from a gym and it shows you lifting weights when you're in litigation, it may come out to a jury. Hard to prove pain and suffering when you are not in pain or suffering.  

Try to stay calm during your deposition and be prepared

Nothing will torpedo a case quicker than a hot tempered, angry plaintiff or a plaintiff that has done zero prep for their case. Plaintiff attorneys know you may be angry, we sympathize and empathize with our clients. However, a plaintiff that is angry or loses their temper during a deposition may play into opposing counsel's hand at trial. Like pouring salt on a wound, opposing counsel will showcase plaintiff's anger by pushing them in court to see if they'll explode for the jury.  Additionally, not taking the time to prepare yourself for a deposition always ends poorly for the plaintiff as they are unaware and not ready for the questions opposing counsel may or will ask. 

Take litigation, discovery, and trial preparations serious

If you want to stand a chance in a jury trial, you must prepare. This means, taking the time to answer discovery correctly and properly with your attorney. As well as, taking time to prepare for your depositions with your attorney. Most importantly, preparing for trial by going over direct examination questions and answers as well as potential cross examination questions.  

Get out in front and take control

Telling your attorney information that could possibly come out during your case will allow them to get out in front of the issue. If you put all the cards on the table and admit to all your shortcomings to a jury upfront, then you take away the defense tactic of hiding information from the jury.  

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Be Honest with yourself and your attorney

If the client does not want to litigate, is fearful or too nervous to speak at a deposition or trial and wants to end the process, let your attorney know immediately. They might be able to settle the case without getting too deep into litigation if there is an offer on the table. 


Most litigation or trial attorneys are used to the litigation process, our clients are not. Those clients that suffer from anxiety or panic attacks in this situation may complicate or hurt their case, so it's a good idea to make sure you tell your attorney up front and early that you do not want to take the case all the way.   

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Blair Law, LLC

1081 Cambridge Square, Suite D, Alpharetta, Georgia 30009, United States

Phone: 770-769-5099 Fax: 404-393-2227

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