We at Kinkle, Rodiger and Spriggs believe the better informed you are, the better choices you will make.
Frequently Asked questions
What is a Civil Action?
A civil action is a lawsuit in which one person (the plaintiff) who claims to have been harmed by the actions of another person (the defendant) seeks relief from the court. The relief requested by the plaintiff may be granted in various ways; an award of money, an injunction to prevent the defendant from performing a certain action or requiring the defendant to perform a certain action, or receiving a declaratory judgment in which the court determines the parties’ rights under a contract or statute.
Do I have a valid lawsuit?
The first step to undertake prior to filing a lawsuit is to evaluate whether or not there is any legal basis for your claim. This means that there should be applicable law that supports your claim against the other party. This is a very important as filing a frivolous case or filing a case to harass the other side could result in you having to pay the other side’s attorney fees and costs as well as any sanctions ordered by the court. Our lawyers can investigate your claim and determine your legal options.
When should I file my claim or lawsuit?
A lawsuit, or in some cases, a claim, must be filed within a certain period of time. This is referred to as the “Statute of Limitations.” The statute of limitations varies based upon the state where you were injured. You must file your case before the statute of limitation expires. After the time limit has expired, unless there is a specific legal exception, you no longer have a legally enforceable claim. Therefore, it is important to consult with an attorney who can advise you of the applicable statute of limitations based upon the facts of your claim. However, after the statute of limitations has expired, there may be an exception which may be used to revive a claim that you may believe is no longer enforceable.
Where do I file my claim or lawsuit?
California has two types of state courts:
Trial courts (also called “superior courts”) and Appellate courts, made up of the Courts of Appeal, and the California Supreme Court. In the trial or superior court, a judge, and sometimes a jury, hears testimony and evidence, and decides a case by applying the law to the facts of the case. Before filing a lawsuit, you need to determine which court has jurisdiction over your case. In the State of California, there are:
- Municipal and Justice Courts (which hear specific types of cases);
- District Courts (which are considered courts of general jurisdiction); and
- The California Supreme Court (which is the final court of appeals)
What is a Summons and Complaint?
A summons and complaint is an official notice of a lawsuit. A defendant must respond to a summons or risk default judgment. It is advisable to consult with a lawyer if you receive a summons. If you have been served with a summons, it means that a court action has been initiated against you. A summons actually consists of two parts: a summons and a complaint. The complaint outlines the accusations made against you and the summons is court order directing you to appear to answer to the charges made in the complaint. These documents are generally referred to as a single action called Summons and Complaint. Depending on the nature of the complaint, it may be in your best interest to consult with an attorney before you proceed. However, do not under any circumstances ignore the summons.
What happens at trial?
A trial is the ultimate event for the determination of all factual and legal issues in a case. A trial is usually scheduled 12 to 18 months after the case is initially filed. In the time between the filing of the case and the trial, the parties engage in various legal procedures called “discovery” to learn all of the facts and legal contentions of the other parties to the case. These include producing all documents relating to the case, answering written questions posed by the other parties and attending “in person” depositions, wherein the other parties are entitled to interview the other parties or independent witnesses so they may ask them questions which must be answered at that time, under oath.
What is Arbitration?
An arbitration is a method for resolving a case in which a neutral arbitrator hears the evidence and makes a decision as if he were the judge and jury at a trial. The rules of evidence may be somewhat relaxed at arbitration and the atmosphere is usually more informal than a trial. Arbitrations can be either binding or nonbinding. In a binding arbitration, the arbitrator’s decision is final and neither party may dispute the result. In a nonbinding arbitration, either side may refuse to accept the arbitrator’s award and request that the court schedule the matter for a “trial de novo,” which means a new trial that will take place without regard for the underlying arbitration. In the trial de novo, no mention is ever made to the jury that the case was previously decided by an arbitrator. The advantages of an arbitration are the simplicity, relative economy and speed by which the parties may submit a dispute for hearing. The disadvantages are the fact that the arbitrator is not bound to follow the regular rules of evidence and the parties may feel the proceeding to have been too informal in nature without proper regard for the complexities of the law.
What is Mediation?
Mediation is a form of alternative dispute resolution. In mediations, both sides of a dispute agree to retain the services of a neutral mediator to assist in the process of negotiating a settlement of the dispute. The mediator is usually a retired judge or an attorney who has a good deal of experience in the area of law that applies to the case which is the subject of the mediation. When a mediation begins, the mediator will introduce himself or herself to both parties and their lawyers. Following the introduction and a brief explanation of the role of the mediator in the settlement process, the mediator typically separates the parties into different conference rooms. The mediator will then go back and forth between the two rooms and engage in separate discussions with both sides about the strengths and weaknesses of their positions in the litigation, their goals in the litigation, and the ramifications of different aspects of the litigation (i.e. risks, costs, and delays that are part of litigation).
What is Personal Injury?
A personal injury is defined as a physical or psychological injury that is caused by another. An individual or company may act negligently or intentionally or may be held strictly liable for causing injury to a person. Lawsuits involving personal injuries are handled in civil court, where financial penalties are enforced, as opposed to criminal court where criminal penalties such as imprisonment are enforced.
What is Negligence?
General negligence may be described as any failure to act with proper caution or care, when this causes harm to another. A good way to determine whether a person was negligent is to ask oneself: “Would a reasonably prudent person have acted in the same manner if put in the same or similar circumstances?” If the answer is no, the person may have been negligent.
What is liability? How do I know who should be held liable for my injuries?
Liability is defined as: “legal responsibility for something, especially costs or damages”. If someone else caused your injuries, intentionally or unintentionally, they may be held liable. This means they would pay for your medical care, lost earnings and other damages associated with your injuries.
What is the difference between compensatory damages and punitive damages?
Compensatory damages are paid to a plaintiff in a personal injury suit in order to help the plaintiff rebuild to the same or similar situation as before the injury occurred. Compensatory damages may include money for medical care, lost wages, pain and suffering and future medical expenses. Punitive damages are meant to penalize the defendant. Whether a plaintiff may receive punitive damages will vary depending on state law and the particular case at hand.
What is the Purpose of a Deposition?
A deposition of an opposing party or witness has many purposes. The following is a list of some reasons why depositions are taken:
- Eliminate surprises at trial.
- Discover the defenses of the opposing party.
- Evaluate the credibility of the deponent.
- Obtain information from non party witnesses.
- Preserve testimony of witnesses who may be unavailable at trial.
- Challenge the testimony of the party or witness.
- Evaluate the strengths and weaknesses of your case and your opponent’s case.
What happens in an accident if the other driver is uninsured?
Unfortunately, more people today are driving in California who are uninsured than at any other time. You can protect yourself and your family from the negligence of an uninsured driver by purchasing uninsured motorist coverage (UM coverage). Every insurance carrier offering automobile insurance in California must offer UM coverage. The minimum coverage is $15,000 for the bodily injury or death of any one person in any one accident and $30,000 because of bodily injury or death of two or more persons in any one accident. The insurance carrier must also allow you to purchase additional UM coverage equal to the limits for bodily injury in the underlying policy of insurance. As an example, if you have $100,000/$300,000 bodily injury liability protection, you can purchase up to $100,000/$300,000 coverage in UM coverage
UM coverage not only protects you when an uninsured driver negligently injures you, but it also affords protection for injuries caused by hit and run drivers.
There is an additional benefit to UM coverage and that is underinsured motorist coverage. By law, policies providing UM coverage must also include under-insured motorist coverage. The minimum limits are the same for the UM coverage. Assume a negligent driver injures you and that person has only $15,000 bodily injury liability coverage. What are you going to do if your injuries and damages exceed $15,000? If you had UM coverage greater than $15,000, you could settle with the negligent driver for his $15,000 policy limits, and pursue a claim against your own insurance company up to the limits of your UM coverage. If your insurance carrier does not attempt to promptly and fairly honor your claim, your insurance company may be guilty of Insurance Bad Faith.
What is Proposition 213?
IF YOU ARE INJURED DRIVING A CAR AND DO NOT HAVE INSURANCE ON THE CAR
In November 1996, the people of the State of California passed Proposition 213. The law took effect on November 6, 1996 and pertains to all claims which have not proceeded to trial as of January 1,1997.
In California, if you are injured in an automobile collision and you are the driver of a car, your damages may be limited, depending on whether there was insurance on the vehicle you were driving at the time of the collision. If you did not have insurance on the vehicle, you are entitled to recover only economic damages. You can’t recover noneconomic damages such as pain and suffering. If you are a passenger in a vehicle that is not covered by insurance, you are entitled to economic and noneconomic damages. The insurance companies lobbied for this law in 1996 (Prop 213) as part of a proposition designed to save them money by depriving people, injured through no fault of their own, of recovery because of their status as uninsured motorists. You should always make sure that you have insurance on your vehicles and that any vehicle you drive is insured.