ANATOMY OF A PERSONAL INJURY CASE IN NEW YORK
If you have been injured from a motor vehicle accident or a fall, your first trip may be to the hospital. At the hospital you will be asked how the injury happened. This will usually be documented in the hospital record. Following the discharge from the hospital when you see your attorney, the attorney will have you sign a retainer agreement which provides for the attorney’s fees, usually being one third. Legal action will follow, if no reasonable offer is made by the insurance company, to settle your case.
After an action is instituted, discovery will be conducted. Discovery will include your examination before trial, as the injured Plaintiff. Defendant, or the party at fault for your injury, whether another vehicle owner or owner of the building where you fell, for example, will also submit to an examination before trial. Discovery will also include the exchange of photographs, records and documents applicable to the litigation. The Defendant will also be entitled to have you submit to a physical examination by the Defendant’s doctor. The Defendant will usually be insured by an insurance company who may arrange for this examination. The attorney for the Defendant may be in house with the insurance company or separately retained by the insurance company. Following the completion of discovery your case is placed on the trial calendar, until it comes up for trial, months later.
The trial, is either bifurcated or unified. If bifurcated, liability or fault is determined first and if you are successful your case proceeds to trial on damages. If unified, both liability and damages are tried at the same time. A jury in a civil case consists of 6 individuals with two alternate jurors. The alternate jurors are discharged before the jury of six retires for a verdict, and their service is complete. The jury makes a determination as to who is at fault and how much to award in damages. The judge decides questions of law. Five of the six jurors must agree on a verdict. If the jurors cannot agree, your case may be tried again. The jury weighs the evidence and determines the facts of the case, that is, what
they believe the evidence has shown. There is no guarantee or certainty as to what the outcome of a jury trial might be.
An appeal is a review of the trial court’s application of the law. There is no jury in an appeal. If you are dissatisfied with findings or rulings on the law, you may appeal based on reversible error. Appeals however, are often costly and time consuming. If the jury awards you compensation or if a settlement is reached during trial, you will be required to sign a general release to obtain the settlement proceeds. If you are 65 years of age or older, medicare will have to be contacted to determine if there is a lien for medical payments made on your behalf. Your liens, if any, must be satisfied. The settlement amount or amount the jury awards you, is not taxable income to you.
At Cohen & Cohen Law Group P.C. we will guide you every step of the way in the legal process. We will prepare you for court appearances and depositions and will answer your questions. Our attorneys will welcome the opportunity to speak with you concerning your rights and responsibilities. If you have been injured, contact us today for a free legal consultation.