Over 90 percent of accident cases settle before trial, and there are good reasons for that. No one wants to think about what happens if they lose a car accident lawsuit, but there is no such thing as a guaranteed trial result. Despite all the time, energy, and effort you and your personal injury lawyers expend in and out of the courtroom, there is always a possibility you might not win. This is what you need to know.
Actually Going to Trial Is a Long, Complex Process
Car accident cases in which there are substantial injuries and the plaintiff’s side is asking for more than $10,000 in damages can go before a jury. Your lawyer will have made a recommendation to you as to whether you should choose a judge or jury trial.
In jury cases, the very first stage in the actual trial process is jury selection. This is when lawyers from both sides pose questions to prospective jurors to see if they are appropriate jury members (who will hopefully be more sympathetic to their side). Jurors are supposed to be fair and unbiased, but they are also human. Some firms even retain jury selection experts to assist in the process.
Evidence and Examination of Witnesses
With a jury selected, the lawyers make opening statements — each side sets out their case and what they believe the evidence will show. Then, the plaintiff (through the attorney) presents evidence by calling witnesses for testimony and entering exhibits. In a personal injury case, there will be evidence about the circumstances of the accident, how the accident happened, what injuries were sustained, what medical treatment was sought and received, and any other relevant information. Witnesses may include doctors, bystanders, acquaintances who may have observed the plaintiff’s suffering, accident reconstructionists, and car experts.
After each witness gives their testimony, the defense lawyers can cross-examine the plaintiff’s witnesses. This can be particularly grueling, because the defense lawyers’ job is to shine a light on inconsistencies, credibility issues, and flawed reasoning. They want to “poke holes” in the plaintiff’s version of events so that the jury doesn’t think the plaintiff has met the burden of proof.
The defense case is presented in a similar way. Witnesses are questioned and exhibits are entered. The aim of the defense is to present credible, reliable evidence that contradicts the plaintiff’s story. For example, the defense may call their own expert witnesses to refute what the plaintiff’s experts have said. They may have found people who saw the plaintiff in seemingly good health and not acting injured. Then, the plaintiff’s lawyers cross-examine the defense witnesses to try to elicit evidence that supports what the plaintiff’s side has said. After the defense case, the parties make closing arguments, in which they review the evidence and try to persuade the jury to come to certain conclusions.
Coming to a Verdict
The jury then deliberates in a different room and reaches a verdict. This may take hours, but in very complicated cases, it can take much longer. The jury members pore over the evidence and may argue amongst themselves about what certain evidence shows and how it should be interpreted. They may talk about the credibility of the parties and witnesses. If they have questions, they may ask the judge for some direction — for example, whether they are allowed to consider a particular piece of evidence.
Why Would You Lose Your Court Case?
Any lawyer who promises you a particular outcome in court should not be trusted. As frustrating as it can be when you aren’t told in black and white terms whether your case would win at trial, every good lawyer knows that there are a number of reasons a case can lose. It could be highly technical reasons, such as one side having better expert evidence than the other side. Some cases may be characterized differently by different doctors, car experts, or accident reconstructionists. The court has to decide whose evidence to accept.
The worst way to lose a case is through lack of preparation, lack of due diligence, or plain stupidity. Perhaps you did not take pictures of the accident scene of your injuries right away — or failed to see a doctor early on and keep seeing them regularly — so you can’t prove parts of your case. Maybe you thought you apologized to the other driver or tried to split the blame “to be nice,” and now the other side is using this against you. Conceivably, you could have sabotaged your own case by bragging about it to friends or family, or representing yourself in court. People who are not litigators by profession are unlikely to know the best steps to take to preserve and gather crucial evidence that will make or break a personal injury case.
You can only improve your chances at trial by having legal representation. Lawyers understand what the court is looking for in terms of documents and evidence, and they can make sure you don’t do something to jeopardize your own case. Some injuries, such as traumatic brain injury and spinal cord injury, are best handled by a lawyer with extensive experience in those areas. Just as you would go to a dentist for general tooth care and an orthodontist for braces, it makes sense to hire a specialist who understands the particular complexities — the science, the medical considerations, the impacts on people.
What Happens After the Trial If You Lose?
Assuming that you did not win any money at all — as opposed to being found partly at fault but still receiving some amount in damages — you have officially “lost” your case at trial when the court gives its verdict declining to grant you monetary compensation.
Appealing the Decision
In California, most appeals need to be filed within 60 days of service of something called a Notice of Entry of Judgment. Your attorney may advise the court right away that you intend to appeal the decision, and will follow a series of steps. If you and your lawyer did not decide on whether to appeal an unsuccessful court decision prior to trial, you will strategize now. Your lawyer will know on what basis you could appeal and will recommend a course of action.
Paying Your Lawyer
In most civil cases, you will have paid a hefty retainer and can expect to receive a final bill from your lawyer if there are any amounts outstanding for services rendered. In personal injury cases, however, most lawyers representing injured parties will work on contingency. This means that whether they get paid is contingent upon them winning the case. You will have agreed to a contingency fee, which is a percentage of whatever money you are awarded by the court or as part of a negotiated settlement.
Paying the Other Side’s Lawyer
In most cases in the United States, thankfully, both sides are expected to pay their own legal costs, pursuant to the “American rule.” The underlying policy of the American Rule is that someone should not avoid litigation because they are scared or unable to pay the other side’s legal costs if they lose. There are exceptions in certain jurisdictions, California included. Parties can agree to a contract that says the losing party will pay the legal costs. Class-action lawsuits often involve a common fund paying costs, not the plaintiffs. Some statutes specifically state that the losing party pays. However, the losing side is always responsible for the other party’s “ordinary” costs, and possibly their “expert” costs as well under CCP section 998.
Paying Your Medical Bills
If you haven’t already filed an auto insurance claim, it may still be possible to do so after losing at trial. The amount will be restricted by the limits of the insurance policy. If you have a health insurance provider, you may be able to file a claim with them. If you have no insurance or have exhausted your insurance claims, you will have to pay your medical bills with cash, credit card, or other currency requested. It may be a good idea to contact your medical practitioner and try to work out a payment plan.
If you cannot afford to pay your medical bills after losing your accident case, you may wish to consider filing for bankruptcy. You will most likely be looking at a “Chapter 7” or “Chapter 13” bankruptcy.
If you file for bankruptcy under Chapter 7, an “automated stay” order stops most collection efforts, and a bankruptcy trustee is appointed. This Chapter 7 trustee sells all your property and assets — except for items that fall under the bankruptcy exemption — and, from this money, pays your creditors back. When you are discharged, which typically takes three to four months, you have a clean financial slate. There is an income requirement for a Chapter 7 bankruptcy, however — if you make too much money, you will need to file under Chapter 13. Chapter 7 works best for debtors with low incomes and fewer assets.
Chapter 13 bankruptcies are designed for people who earn a regular income and have some money left over, making it possible to set up a repayment plan. Under Chapter 13, you keep all your property and get a few benefits that you can’t get from Chapter 7, such as the ability to catch up on missed payments and discharge certain unsecured liens from your property. Chapter 13 basically allows you to reorganize your debts and pay them off in about three to five years. Most people who file for bankruptcy under Chapter 13 are people who need debt relief — to stop litigation, to prevent their wages from being garnished, or to have a more manageable payment schedule — but want to keep their property and assets.
Bankruptcies are subject to some very technical rules, so make sure you talk to a lawyer before proceeding.
Revisiting the Settlement Process
People often assume that if they are “settling” something, it’s for less than they would otherwise get. Ironically, in the legal context, “settling for less” is actually “more.” Merits of any particular case aside, let’s pretend that Person A and Person B were in different car accidents, but their circumstances and injuries were similar. Now they are going up against the elite legal team of the driver’s insurance company. Case A doesn’t settle despite several rounds of negotiation and goes to trial. It is set for a couple of weeks, several months away. There are pretrial motions, depositions, document discovery procedures, witness preparation and logistics of bringing them to court when they are needed, case law research, filings, and more. At the end of trial, there is still uncertainty, because both sides’ experts were good but the plaintiff has the burden of proof. The uncertainty isn’t just about whether Plaintiff A will win but how much Plaintiff A will be rewarded, if at all. If the defendant was actually an individual, there is also no guarantee that they will be able to collect the money. What if the defendant is broke or declares bankruptcy?
Case B goes through the same negotiation processes. As stressful as those were, the defendant insurance company or individual decides to settle. Both sides agree to what they feel is a fair amount. The settlement can be filed in court, giving it the weight of the law. Because the defendant agreed to the sum, it is more likely that they have it at hand. They want to avoid a trial as well so they don’t have to pay through the nose for their lawyers — so they have every incentive to pay Plaintiff B.
The amount you agree to may not be the highest level similar plaintiffs have gotten through trial, but you do not have to take time off work to go to court. You also don’t have the stress of not knowing the outcome hanging over your head. You will get your money a lot earlier so you can get your finances and life back in order, sooner. Even if you settle on the last day of trial, you at least have more of a “sure thing.”Personal injury lawyers with years of settlement and trial experience will be able to assess your case and tell you what your best options are. Talk to us about your case today — your first consultation is free. You deserve to get what’s fair for your injury.