FREQUENTLY ASKED QUESTIONS

FREQUENTLY ASKED QUESTIONS

No one plans to be the victim of a personal injury, and hiring an attorney can be daunting and confusing.  Here, we attempt to answer some common questions facing injury victims to help remove some of the uncertainty.

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Medical Treatment FAQ

What is a Summary Judgment motion?


A Summary Judgment motion is a request for the court to decide legal issues involved in the case, based on the evidence identified during discovery. The Summary Judgment motion is filed with the court usually by the defendant at the end of discovery. The purpose of Summary Judgment motions is to achieve one of two objectives: (1) either end the plaintiff’s case due to dispositive issues of law that preclude the plaintiff’s case; or (2) to narrow the plaintiff’s legal claims for trial.




What does the Summary Judgment process look like?


In Georgia state courts, the Summary Judgment process begins when a party, usually a defendant, files a Motion for Summary Judgment with the court. The responding party has thirty (30) days to file a response in opposition to the Motion for Summary Judgment. After that, the parties usually request and schedule a hearing with the court to discuss the specific issues. The court usually takes one to three months to read the parties legal briefs and perform its own research before formalizing its decision in a final order.




Who can file a Motion for Summary Judgment?


Any party can file a motion for Summary Judgment, but in personal injury cases, defendants are usually the party filing these motions. That’s because the defendant wants to avoid trial on some or all of the plaintiff’s legal claims, if possible.




What happens if the judge grants Summary Judgment in my case?


If the judge grants a defendant’s motion for Summary Judgment, the judge is agreeing with the defendant that some or all of the plaintiff’s case should not go to trial. For all practical purpose, the plaintiff’s case ends with regard to those issues decided by the judge. The only way a plaintiff can challenge the trial court judge’s decision is by appealing the final summary judgment order.




What happens if the Judge denies Summary Judgment in my case?


If the judge denies a defendant’s motion for Summary Judgment, the judge agrees with the plaintiff that a jury should decide all or part of the plaintiff’s case. A defendant can challenge the trial court judge’s decision by appealing the final summary judgment order.




How long does it take for a judge to decide a Summary Judgment motion?


A judge usually takes one to three months to consider the legal briefs and decide whether to grant or deny a motion Summary Judgment. This period does not begin until after the parties have submitted their legal briefs and, if requested, held a hearing on those briefs. The judge may take longer if the case involves complex issues.




Who has the burden of proof on Summary Judgment?


The party seeking Summary Judgment, usually the defendant, has the burden of proving to the judge that their motion for Summary Judgment should be granted. This means the defendant must show there are no genuine issues of fact to prevent the case from being decided by the Judge. Meanwhile, if the party opposing the motion for Summary Judgment is able to show that genuine issues of fact exist, the case should go to the jury at trial.




Can Summary Judgment be reversed?


The trial court judge’s decision whether to grant or deny summary judgment can be reversed by the court of appeals. This only occurs if the losing party files an appeal challenging the judge’s decision. It is rare for the court of appeals to accept an appeal and reverse the trial court’s decision.





Property Damage FAQ

How should I dress for trial?


You should dress to be comfortable, as trial will last the whole day, likely for several days. Usually, this means dressing semi-formally in order to make a favorable impression on the judge, jury, and the insurance adjuster representing the defendant, if present.




Can I talk to the jury outside of the courtroom?


At no time are you allowed to communicate with a juror, in any way, during trial including outside the courtroom. This can be tough because the courthouse is not a large building. And, jurors often take their lunch breaks at the same nearby restaurants you may attend. It’s inevitable that your path will cross with a juror’s at some point during trial. You should do everything to avoid contact with a juror, because any improper contact can be grounds for a mistrial.




How should I address the judge?


Always refer to the judge as “your honor.” Any time you are speaking to the judge or the judge is speaking to you, never remain seated. Always stand up and show respect. The judge has wide discretion to decide a myriad of issues in your case, so every effort should be made to afford the judge appropriate respect.




How long is the average civil jury trial?


Civil jury trials for personally injury cases typically last between two and five days. For complex cases, they can last longer. The judge decides what time the case will begin each day, when breaks will be taken, and when the court will adjourn – or end – each day. This means, the judge has discretion to allow the case to continue until it reaches a good stopping point into late in the evening.




What is preponderance of the evidence?


In a civil case, an injured party – or plaintiff –has the burden of proving his/her case by what is known “preponderance of the evidence.” This means “the greater weight of evidence upon the issues involved.” Commonly, this is illustrated by attorneys by analogizing it to equally-balanced scales. If the plaintiff tips the scales, even just slightly, this is described as preponderance of the evidence.




Do all jurors have to agree in a civil case?


In Georgia, a jury verdict for a civil case must be unanimous – meaning each juror must freely and voluntarily agree with the verdict.




How much does a civil trial cost?


The costs of trial can vary drastically depending on the case, facts, and issues, but you should expect that trial expenses to be atleast $5,000. Witness fees, including treating physicians and experts, are typically among the most expensive costs for trial. Developing persuasive trial exhibits, as well as hotel and food costs are additional expenses. Finally, hiring a trial technology technician to assist with the effective presentation of evidence is an optional expense.




How do juries determine damages?


There is no precise way a jury calculates damages in a personal injury trial. Typically, a jury will first consider proof of the quantifiable “hard costs” such medical expenses, lost wages, and similar items. From there, the jury will consider the evidence and testimony in attempt quantify the pain and suffering and other items of general damages. Once total damages are decided, these damages are apportioned – or divided – between the parties based on percentage of fault. By way of example, a jury could value your total injuries and damages at $100,000. But, if the jury believes you are 40% responsible for causing your injuries, the defendants will only be responsible for paying $60,000 (or 60%) according to their apportioned fault.





Liability and Car Insurance FAQ

What is a Demand Letter?


A Demand Letter is an attempt to resolve a dispute by demanding that the offending party’s insurance company compensate an injured party within a certain period of time. It is a formal letter, sent via certified mail, and it is usually supported by exhibits and other documents that proves the injured party’s position. The offending party’s insurance adjuster has a certain time period to evaluate the Demand Letter before formalizing a response to either accept or reject the demands.




What does a demand letter include?


Generally, a personal injury Demand Letter includes two parts: (1) an outline of the claims for liability – or responsibility – for causing the injury; and (2) an outline of the claims for damages – or injuries – and how they are valued. Depending on the details of the case, other issues may also be discussed. The Demand Letter is supported by exhibits and other documents to prove the injured party’s position.




Why is it important to send a Demand Letter?


Generally, a Demand Letter is important because it provides an injured party an opportunity to resolve their claim for injuries without further escalation. It provides an opportunity to save time and expense, as well as to bring closure to the injured party’s legal case so they may move on with their personal lives.




What makes for an effective demand letter?


An effective Demand Letter does not simply make conclusory allegations. Instead, it provides an outline of an injured party’s claim for liability and damages, with supporting records. Focusing on the individual details and issues of the specific claim in a clear and concise way help make Demand Letter’s effective.




How long does an adjuster have to respond to a Demand Letter?


Ordinarily, the offending party’s insurance carrier has 30 days to respond to a Demand Letter. This period of time complies with several Georgia statutes to allow the insurance carrier time to make a thoughtful assessment. For auto accidents involving the injured party’s UM/UIM insurance carrier, the statutory time limit is 60 days.




Do all insurance adjusters value claims the same?


Insurance companies and their insurance adjusters value claims very differently. Insurance companies may have general guidelines for valuing personal injury claims, and their individual adjusters may have wide discretion to value claims within those guidelines. In other words, there is no way to predict how an insurance adjuster will value your case under any set of facts.




How much should I demand in a demand letter?


The amount you should demand in a Demand Letter depends on the information available, the circumstances of your case, and ofcourse, your injuries (or damages). There are so many different variables that make each case different, you should confer with your attorney to decide on the amount that accurately reflects your case.





Demand Letters FAQ

What is a Demand Letter?


A Demand Letter is an attempt to resolve a dispute by demanding that the offending party’s insurance company compensate an injured party within a certain period of time. It is a formal letter, sent via certified mail, and it is usually supported by exhibits and other documents that proves the injured party’s position. The offending party’s insurance adjuster has a certain time period to evaluate the Demand Letter before formalizing a response to either accept or reject the demands.




What does a demand letter include?


Generally, a personal injury Demand Letter includes two parts: (1) an outline of the claims for liability – or responsibility – for causing the injury; and (2) an outline of the claims for damages – or injuries – and how they are valued. Depending on the details of the case, other issues may also be discussed. The Demand Letter is supported by exhibits and other documents to prove the injured party’s position.




Why is it important to send a Demand Letter?


Generally, a Demand Letter is important because it provides an injured party an opportunity to resolve their claim for injuries without further escalation. It provides an opportunity to save time and expense, as well as to bring closure to the injured party’s legal case so they may move on with their personal lives.




What makes for an effective demand letter?


An effective Demand Letter does not simply make conclusory allegations. Instead, it provides an outline of an injured party’s claim for liability and damages, with supporting records. Focusing on the individual details and issues of the specific claim in a clear and concise way help make Demand Letter’s effective.




How long does an adjuster have to respond to a Demand Letter?


Ordinarily, the offending party’s insurance carrier has 30 days to respond to a Demand Letter. This period of time complies with several Georgia statutes to allow the insurance carrier time to make a thoughtful assessment. For auto accidents involving the injured party’s UM/UIM insurance carrier, the statutory time limit is 60 days.




Do all insurance adjusters value claims the same?


Insurance companies and their insurance adjusters value claims very differently. Insurance companies may have general guidelines for valuing personal injury claims, and their individual adjusters may have wide discretion to value claims within those guidelines. In other words, there is no way to predict how an insurance adjuster will value your case under any set of facts.




How much should I demand in a demand letter?


The amount you should demand in a Demand Letter depends on the information available, the circumstances of your case, and ofcourse, your injuries (or damages). There are so many different variables that make each case different, you should confer with your attorney to decide on the amount that accurately reflects your case.





Litigation FAQ

What is a Complaint?


A Complaint is a legal document filed with the court that begins the formal litigation process. It identifies the defendant(s) against whom the personal injury claims are made, and it sets out the allegations of fact, the laws and rights violated, and the damages being pursued. A defendant’s attorney will file an “Answer” to the Complaint, responding to each allegation and setting out each defense.




What does it mean to file a Complaint in court?


Filing a Complaint means that the dispute is being formalized and escalated to the public courts to begin the litigation process. A judge is assigned to the case, the defendant likely receives representation from a defense attorney, and your case becomes subject to the civil procedures of the court. The Complaint and future legal documents filed with the court become part of the public record, available to public scrutiny.




Can my attorney file a complaint without my approval?


A lawyer cannot initiate the formal litigation process by filing a Complaint without first receiving a client’s express or implied permission. Failure to receive permission from the client could have legal and ethical consequences for the attorney. Although the attorney is most knowledgeable in the law, the claim always belongs to one person – the client.




Why does my Complaint have to be “served” on the Defendant?


Service of process – or service of the Complaint and Summons – on the defendant is critical because it establishes that the court hearing the lawsuit has jurisdiction over the defendant. Service of process is also important because it notifies the defendant that the plaintiff is escalating their dispute by initiating the formal litigation process with the courts. It allows the defendant to hire an attorney, respond to the allegations in the Complaint, and form a legal defense.




What does the civil litigation process look like?


The civil litigation process is divided in to four general stages: (1) filing initial pleadings, such as the Complaint and Answer; (2) discovery, which is the exchange of information, records, and taking of depositions; (3) dispositive motions and pre-trial procedure, where the issues are narrowed for trial; and (4) trial. At any stage, legal disputes could be escalated in an appeal. Most cases settle before reaching the trial stage.




Why do attorney fees increase for litigation?


Attorney’s fees increase for litigation, because it requires significant more time and resources of the attorney and his office. For instance, formal litigation imposes mandatory deadlines the attorney must follow, it requires the attorney to prepare for and attend legal hearings and depositions, and it necessitates that the attorney respond to different legal motions and address other legal disputes. Incidentally, the increasing attorney fees help ensure that the client is committed to pursuing bona fide legal disputes.




How long does the defendant have to file an Answer to my Complaint?


In Georgia, a defendant typically has 30 days after service of the Summons and Complaint to file an Answer. However, if the proof of service is not filed with the court within five business days after the service was made, the 30-day clock does not begin until after proof of service is filed with the court.




How long does it take for a case to go to trial?


A civil case will not usually go to trial until at least eight to twelve months after the Complaint is filed. But, this is highly susceptible to change, depending on the complexity of the case, the legal issues involved, and the court’s docket and availability. It’s not uncommon for case to be in litigation for a year and a half, two years, or longer before it can go to trial.




Who pays the expenses of litigation?


Generally, each party to a lawsuit pays his own litigation expenses, irrespective of who “won or lost. A personal injury attorney initially pays for all of their client’s litigation expenses. In this way, if the case does not resolve and the Plaintiff loses the case, the attorney takes all of the risk and absorbs all of the costs. However, if the case settles, the attorney’s expenses are reimbursed out of the settlement.





Attorney Communications FAQ

Are my communications with my attorney confidential?


Generally, a client’s communications with their attorney are confidential. For this reason, it’s important to be truthful with your attorney at all times, even with embarrassing or unfavorable information. However, there are some exceptions. For instance, an attorney cannot engage in communications in furtherance of a crime. Also, if the communication is shared with a third-party who is not the client’s attorney, it may not be confidential.




How often should I expect to hear from my attorney?


At a minimum, the client should expect to hear from their attorney any time there are major decisions involving your case. This varies at different stages, and it can be difficult to predict. If in doubt, the client should give their attorney a call or shoot them an email, and the attorney should respond within 24 to 48 hours.




Is my attorney allowed to ignore my calls?


Generally, an attorney is not allowed to ignore their clients, and at Wheale Law Firm we pride ourselves in being directly accessible and responsive to each client. We will never intentionally ignore a client’s call or email. It’s important to remember that attorneys are often very busy researching, drafting and writing legal documents, attending depositions and court hearings, and performing other important work for each of their clients. Be patient with your attorney, and don’t be afraid to send a follow-up call or email – you won’t hurt our feelings.




What is the best way to contact my attorney?


The best way to contact an attorney at Wheale Law Firm is by email. We can access our emails remotely, even when we are away from the office. Emails also create a permanent record of the client’s attempt to contact the attorney, which the attorney will see each time the mailbox is opened. Finally, the attorney can review the client’s questions and concerns and spend time providing a thoughtful and concise response. With that said, do not be afraid to call – we gladly answer telephone calls or call back within 24 to 48 hours.





Discovery FAQ

What is discovery?


Discovery is the legal process in which parties exchange records and information – and seek records and information from nonparties – that could lead to evidence at trial. You should cooperate with your attorney and provide all records and information requested in discovery. The attorney can decide if any information or records are legally protected and should be withheld.




When does discovery start?


Discovery starts as soon as the defendant files an Answer to your Complaint.




How long does discovery last?


In Georgia, discovery typically lasts six months from the date that the defendant files an Answer to your Complaint. This period is often extended by the parties or the court if the case involves complex issues or there are unforeseen delays.




Why does discovery take so long?


Discovery can take a long time for several reasons. First, there are certain time periods each party is afforded to respond to written discovery. Discovery disputes for these written requests can take even more time to resolve. Also, it can be difficult to coordinate schedules on certain discovery items, such as depositions or inspections. Finally, common conflicts during the year, such as national holidays or school schedules can interrupt the discovery process.




What are Interrogatories and why are they so important?


Interrogatories are a discovery tool that the parties can use to have specific questions answered under oath and before trial. Interrogatories are itemized questions sent to the other party that he must respond to in writing. Interrogatories response are important because they are provided under oath and admissible evidence. Parties use Interrogatories to help focus and narrow the issues for trial.




What are Requests for Production of documents?


Requests for Production are written demands, usually requiring the responding party to produce copies of documents or records he possesses or can readily obtain. They are used to discover potential evidence at trial, favorable or unfavorable, as well as identify records that could lead to other admissible evidence. You should cooperate with your attorney and provide all records and information requested in discovery. The attorney can decide if any information or records are legally protected and should be withheld.




Why is the defendant requesting my employment records?


A defendant and his attorney could be requesting your employment records for multiple reasons. Most often, the defendant is seeking evidence related to claims of lost wages. The attorney may also be seeking information regarding your medical history that may be noted in your employment records.




Do I need to disclose my driving history?


Any party to a case involving an automobile collision should willingly disclose their driving history when requested. Regardless, this information can be obtained from the Department of Driver Services in a nonparty subpoena. You should not withhold any information, such as driving history or even criminal history, from your attorney.




Do I need to disclose my mental health records?





How is my criminal history relevant to my case?






Depositions FAQ

What does subrogation mean in health insurance?


In the personal injury context, subrogation is the right of health insurance to seek reimbursement for medical expenses paid on your behalf. It is similar in concept to a medical lien, but for health insurance companies. For instance, if your health insurance pays $1,000 to cover medical expenses associated with a personal injury claim, they could be entitled to subrogation – or reimbursement – for that amount out of any personal injury settlement.




What is an example of subrogation?


Health insurance subrogation is most common in the personal injury context. Let’s say you incur $1,500 in emergency room medical expenses due to a car accident. Instead of paying that full amount, let’s assume health insurance only pays $1,000 to close out the ER bill on your behalf. This adjusted amount is based on their separate contract arrangement with the ER hospital. Although the ER hospital no longer has a medical lien against you or your case, your health insurance has a subrogation lien against your case for the $1,000 paid on your behalf.




Do I have to pay a subrogation claim?


In Georgia, a personal injury victim is expected to pay a subrogation claim out of any settlement. The type of health insurance you have determines the extent of that obligation. For instance, Medicare and Medicaid will accept a reduced – or discounted – rate of their subrogation claim. Georgia’s “made whole” statutes may also require private insurers to accept a reduced subrogation amount if the circumstances of your case permit. Federally-protected health insurance will always require full reimbursement of their subrogation claim.




Why should my health insurance pay for my medical treatment?


Your health insurance should pay for you medical treatment because that’s what it’s there for. You pay health insurance premiums for unforeseen medical treatment, such as in a personal injury case. Health insurance will pay medical expenses promptly, avoiding harassing debt collectors seeking to profit off of your misfortune. Health insurance carriers almost always pay a reduced – or contractually adjusted – amount of the total bill to your medical providers. When your personal injury case settles, you will have to reimburse the value of your medical expenses – whether that’s the full price through a medical lien, or a lower amount through your health insurer’s subrogation claim.




What does ERISA mean and why is it important?


An ERISA health plan is one that is covered under the Employee Retirement Income Security Act of 1974 (ERISA). Usually, this involves employer-provided health plans or other federally-sponsored health plan. ERISA health plans are important because they are federally-protected, and they are entitled to full reimbursement for any medical expenses paid in connection with a personally injury case.




Does my health insurance qualify as an ERISA plan?


Generally, an employer-provided health plan is likely to qualify as an ERISA plan, though there are exceptions. Similarly, federal employees or anyone else who is a beneficiary under a federal health plan is benefitting from an ERISA plan.




What is the made-whole doctrine and how does it work?


The made-whole doctrine protects a personal victim who is not “made whole” by the personal injury settlement. “Made whole” in this context means the personal injury victim has not received complete compensation for all that has been taken from them – physical injuries, lost wages, pain and suffering, etc. In Georgia, this doctrine has been codified in to law. If the health insurer or medical provider does not have a protected lien (i.e. ERISA, Medicare, Medicaid, or filed medical lien), the made whole doctrine may prevent them from receiving full reimbursement.




Why do I have to pay back health insurance expenses?


An injured victim is required to pay back all medical expenses associated with their personal injury claim out of any settlement. This includes medical bills paid by health insurance carriers. The reason for this obligation is that if a personal injury victim settles their case for the value of their medical expenses, the victim cannot receive a windfall for those medical expenses. Instead, the personal injury victim is expected to reimburse all medical expenses out of the settlement. This duty is required and enforceable by law, though there can be certain exceptions such as those protected by the made whole statute.




Can I be sued for not paying a subrogation claim?


A personal injury victim can be sued for not reimbursing their health insurance under a subrogation claim. The health insurance company’s right to subrogation (or reimbursement) is a legally protected right, though it can be subject to by the made-whole laws in Georgia. ERISA health plans are entitled to full reimbursement, and they are not subject to the made whole statutes.





Summary Judgment FAQ

What is a Summary Judgment motion?


A Summary Judgment motion is a request for the court to decide legal issues involved in the case, based on the evidence identified during discovery. The Summary Judgment motion is filed with the court usually by the defendant at the end of discovery. The purpose of Summary Judgment motions is to achieve one of two objectives: (1) either end the plaintiff’s case due to dispositive issues of law that preclude the plaintiff’s case; or (2) to narrow the plaintiff’s legal claims for trial.




What does the Summary Judgment process look like?


In Georgia state courts, the Summary Judgment process begins when a party, usually a defendant, files a Motion for Summary Judgment with the court. The responding party has thirty (30) days to file a response in opposition to the Motion for Summary Judgment. After that, the parties usually request and schedule a hearing with the court to discuss the specific issues. The court usually takes one to three months to read the parties legal briefs and perform its own research before formalizing its decision in a final order.




Who can file a Motion for Summary Judgment?


Any party can file a motion for Summary Judgment, but in personal injury cases, defendants are usually the party filing these motions. That’s because the defendant wants to avoid trial on some or all of the plaintiff’s legal claims, if possible.




What happens if the judge grants Summary Judgment in my case?


If the judge grants a defendant’s motion for Summary Judgment, the judge is agreeing with the defendant that some or all of the plaintiff’s case should not go to trial. For all practical purpose, the plaintiff’s case ends with regard to those issues decided by the judge. The only way a plaintiff can challenge the trial court judge’s decision is by appealing the final summary judgment order.




What happens if the Judge denies Summary Judgment in my case?


If the judge denies a defendant’s motion for Summary Judgment, the judge agrees with the plaintiff that a jury should decide all or part of the plaintiff’s case. A defendant can challenge the trial court judge’s decision by appealing the final summary judgment order.




How long does it take for a judge to decide a Summary Judgment motion?


A judge usually takes one to three months to consider the legal briefs and decide whether to grant or deny a motion Summary Judgment. This period does not begin until after the parties have submitted their legal briefs and, if requested, held a hearing on those briefs. The judge may take longer if the case involves complex issues.




Who has the burden of proof on Summary Judgment?


The party seeking Summary Judgment, usually the defendant, has the burden of proving to the judge that their motion for Summary Judgment should be granted. This means the defendant must show there are no genuine issues of fact to prevent the case from being decided by the Judge. Meanwhile, if the party opposing the motion for Summary Judgment is able to show that genuine issues of fact exist, the case should go to the jury at trial.




Can Summary Judgment be reversed?


The trial court judge’s decision whether to grant or deny summary judgment can be reversed by the court of appeals. This only occurs if the losing party files an appeal challenging the judge’s decision. It is rare for the court of appeals to accept an appeal and reverse the trial court’s decision.





Mediation FAQ

What is discovery?


Discovery is the legal process in which parties exchange records and information – and seek records and information from nonparties – that could lead to evidence at trial. You should cooperate with your attorney and provide all records and information requested in discovery. The attorney can decide if any information or records are legally protected and should be withheld.




When does discovery start?


Discovery starts as soon as the defendant files an Answer to your Complaint.




How long does discovery last?


In Georgia, discovery typically lasts six months from the date that the defendant files an Answer to your Complaint. This period is often extended by the parties or the court if the case involves complex issues or there are unforeseen delays.




Why does discovery take so long?


Discovery can take a long time for several reasons. First, there are certain time periods each party is afforded to respond to written discovery. Discovery disputes for these written requests can take even more time to resolve. Also, it can be difficult to coordinate schedules on certain discovery items, such as depositions or inspections. Finally, common conflicts during the year, such as national holidays or school schedules can interrupt the discovery process.




What are Interrogatories and why are they so important?


Interrogatories are a discovery tool that the parties can use to have specific questions answered under oath and before trial. Interrogatories are itemized questions sent to the other party that he must respond to in writing. Interrogatories response are important because they are provided under oath and admissible evidence. Parties use Interrogatories to help focus and narrow the issues for trial.




What are Requests for Production of documents?


Requests for Production are written demands, usually requiring the responding party to produce copies of documents or records he possesses or can readily obtain. They are used to discover potential evidence at trial, favorable or unfavorable, as well as identify records that could lead to other admissible evidence. You should cooperate with your attorney and provide all records and information requested in discovery. The attorney can decide if any information or records are legally protected and should be withheld.




Why is the defendant requesting my employment records?


A defendant and his attorney could be requesting your employment records for multiple reasons. Most often, the defendant is seeking evidence related to claims of lost wages. The attorney may also be seeking information regarding your medical history that may be noted in your employment records.




Do I need to disclose my driving history?


Any party to a case involving an automobile collision should willingly disclose their driving history when requested. Regardless, this information can be obtained from the Department of Driver Services in a nonparty subpoena. You should not withhold any information, such as driving history or even criminal history, from your attorney.




Do I need to disclose my mental health records?





How is my criminal history relevant to my case?






Trial FAQ

How should I dress for trial?


You should dress to be comfortable, as trial will last the whole day, likely for several days. Usually, this means dressing semi-formally in order to make a favorable impression on the judge, jury, and the insurance adjuster representing the defendant, if present.




Can I talk to the jury outside of the courtroom?


At no time are you allowed to communicate with a juror, in any way, during trial including outside the courtroom. This can be tough because the courthouse is not a large building. And, jurors often take their lunch breaks at the same nearby restaurants you may attend. It’s inevitable that your path will cross with a juror’s at some point during trial. You should do everything to avoid contact with a juror, because any improper contact can be grounds for a mistrial.




How should I address the judge?


Always refer to the judge as “your honor.” Any time you are speaking to the judge or the judge is speaking to you, never remain seated. Always stand up and show respect. The judge has wide discretion to decide a myriad of issues in your case, so every effort should be made to afford the judge appropriate respect.




How long is the average civil jury trial?


Civil jury trials for personally injury cases typically last between two and five days. For complex cases, they can last longer. The judge decides what time the case will begin each day, when breaks will be taken, and when the court will adjourn – or end – each day. This means, the judge has discretion to allow the case to continue until it reaches a good stopping point into late in the evening.




What is preponderance of the evidence?


In a civil case, an injured party – or plaintiff –has the burden of proving his/her case by what is known “preponderance of the evidence.” This means “the greater weight of evidence upon the issues involved.” Commonly, this is illustrated by attorneys by analogizing it to equally-balanced scales. If the plaintiff tips the scales, even just slightly, this is described as preponderance of the evidence.




Do all jurors have to agree in a civil case?


In Georgia, a jury verdict for a civil case must be unanimous – meaning each juror must freely and voluntarily agree with the verdict.




How much does a civil trial cost?


The costs of trial can vary drastically depending on the case, facts, and issues, but you should expect that trial expenses to be atleast $5,000. Witness fees, including treating physicians and experts, are typically among the most expensive costs for trial. Developing persuasive trial exhibits, as well as hotel and food costs are additional expenses. Finally, hiring a trial technology technician to assist with the effective presentation of evidence is an optional expense.




How do juries determine damages?


There is no precise way a jury calculates damages in a personal injury trial. Typically, a jury will first consider proof of the quantifiable “hard costs” such medical expenses, lost wages, and similar items. From there, the jury will consider the evidence and testimony in attempt quantify the pain and suffering and other items of general damages. Once total damages are decided, these damages are apportioned – or divided – between the parties based on percentage of fault. By way of example, a jury could value your total injuries and damages at $100,000. But, if the jury believes you are 40% responsible for causing your injuries, the defendants will only be responsible for paying $60,000 (or 60%) according to their apportioned fault.





Settlement FAQ

What does subrogation mean in health insurance?


In the personal injury context, subrogation is the right of health insurance to seek reimbursement for medical expenses paid on your behalf. It is similar in concept to a medical lien, but for health insurance companies. For instance, if your health insurance pays $1,000 to cover medical expenses associated with a personal injury claim, they could be entitled to subrogation – or reimbursement – for that amount out of any personal injury settlement.




What is an example of subrogation?


Health insurance subrogation is most common in the personal injury context. Let’s say you incur $1,500 in emergency room medical expenses due to a car accident. Instead of paying that full amount, let’s assume health insurance only pays $1,000 to close out the ER bill on your behalf. This adjusted amount is based on their separate contract arrangement with the ER hospital. Although the ER hospital no longer has a medical lien against you or your case, your health insurance has a subrogation lien against your case for the $1,000 paid on your behalf.




Do I have to pay a subrogation claim?


In Georgia, a personal injury victim is expected to pay a subrogation claim out of any settlement. The type of health insurance you have determines the extent of that obligation. For instance, Medicare and Medicaid will accept a reduced – or discounted – rate of their subrogation claim. Georgia’s “made whole” statutes may also require private insurers to accept a reduced subrogation amount if the circumstances of your case permit. Federally-protected health insurance will always require full reimbursement of their subrogation claim.




Why should my health insurance pay for my medical treatment?


Your health insurance should pay for you medical treatment because that’s what it’s there for. You pay health insurance premiums for unforeseen medical treatment, such as in a personal injury case. Health insurance will pay medical expenses promptly, avoiding harassing debt collectors seeking to profit off of your misfortune. Health insurance carriers almost always pay a reduced – or contractually adjusted – amount of the total bill to your medical providers. When your personal injury case settles, you will have to reimburse the value of your medical expenses – whether that’s the full price through a medical lien, or a lower amount through your health insurer’s subrogation claim.




What does ERISA mean and why is it important?


An ERISA health plan is one that is covered under the Employee Retirement Income Security Act of 1974 (ERISA). Usually, this involves employer-provided health plans or other federally-sponsored health plan. ERISA health plans are important because they are federally-protected, and they are entitled to full reimbursement for any medical expenses paid in connection with a personally injury case.




Does my health insurance qualify as an ERISA plan?


Generally, an employer-provided health plan is likely to qualify as an ERISA plan, though there are exceptions. Similarly, federal employees or anyone else who is a beneficiary under a federal health plan is benefitting from an ERISA plan.




What is the made-whole doctrine and how does it work?


The made-whole doctrine protects a personal victim who is not “made whole” by the personal injury settlement. “Made whole” in this context means the personal injury victim has not received complete compensation for all that has been taken from them – physical injuries, lost wages, pain and suffering, etc. In Georgia, this doctrine has been codified in to law. If the health insurer or medical provider does not have a protected lien (i.e. ERISA, Medicare, Medicaid, or filed medical lien), the made whole doctrine may prevent them from receiving full reimbursement.




Why do I have to pay back health insurance expenses?


An injured victim is required to pay back all medical expenses associated with their personal injury claim out of any settlement. This includes medical bills paid by health insurance carriers. The reason for this obligation is that if a personal injury victim settles their case for the value of their medical expenses, the victim cannot receive a windfall for those medical expenses. Instead, the personal injury victim is expected to reimburse all medical expenses out of the settlement. This duty is required and enforceable by law, though there can be certain exceptions such as those protected by the made whole statute.




Can I be sued for not paying a subrogation claim?


A personal injury victim can be sued for not reimbursing their health insurance under a subrogation claim. The health insurance company’s right to subrogation (or reimbursement) is a legally protected right, though it can be subject to by the made-whole laws in Georgia. ERISA health plans are entitled to full reimbursement, and they are not subject to the made whole statutes.





Health Insurance and Subrogation FAQ

What does subrogation mean in health insurance?


In the personal injury context, subrogation is the right of health insurance to seek reimbursement for medical expenses paid on your behalf. It is similar in concept to a medical lien, but for health insurance companies. For instance, if your health insurance pays $1,000 to cover medical expenses associated with a personal injury claim, they could be entitled to subrogation – or reimbursement – for that amount out of any personal injury settlement.




What is an example of subrogation?


Health insurance subrogation is most common in the personal injury context. Let’s say you incur $1,500 in emergency room medical expenses due to a car accident. Instead of paying that full amount, let’s assume health insurance only pays $1,000 to close out the ER bill on your behalf. This adjusted amount is based on their separate contract arrangement with the ER hospital. Although the ER hospital no longer has a medical lien against you or your case, your health insurance has a subrogation lien against your case for the $1,000 paid on your behalf.




Do I have to pay a subrogation claim?


In Georgia, a personal injury victim is expected to pay a subrogation claim out of any settlement. The type of health insurance you have determines the extent of that obligation. For instance, Medicare and Medicaid will accept a reduced – or discounted – rate of their subrogation claim. Georgia’s “made whole” statutes may also require private insurers to accept a reduced subrogation amount if the circumstances of your case permit. Federally-protected health insurance will always require full reimbursement of their subrogation claim.




Why should my health insurance pay for my medical treatment?


Your health insurance should pay for you medical treatment because that’s what it’s there for. You pay health insurance premiums for unforeseen medical treatment, such as in a personal injury case. Health insurance will pay medical expenses promptly, avoiding harassing debt collectors seeking to profit off of your misfortune. Health insurance carriers almost always pay a reduced – or contractually adjusted – amount of the total bill to your medical providers. When your personal injury case settles, you will have to reimburse the value of your medical expenses – whether that’s the full price through a medical lien, or a lower amount through your health insurer’s subrogation claim.




What does ERISA mean and why is it important?


An ERISA health plan is one that is covered under the Employee Retirement Income Security Act of 1974 (ERISA). Usually, this involves employer-provided health plans or other federally-sponsored health plan. ERISA health plans are important because they are federally-protected, and they are entitled to full reimbursement for any medical expenses paid in connection with a personally injury case.




Does my health insurance qualify as an ERISA plan?


Generally, an employer-provided health plan is likely to qualify as an ERISA plan, though there are exceptions. Similarly, federal employees or anyone else who is a beneficiary under a federal health plan is benefitting from an ERISA plan.




What is the made-whole doctrine and how does it work?


The made-whole doctrine protects a personal victim who is not “made whole” by the personal injury settlement. “Made whole” in this context means the personal injury victim has not received complete compensation for all that has been taken from them – physical injuries, lost wages, pain and suffering, etc. In Georgia, this doctrine has been codified in to law. If the health insurer or medical provider does not have a protected lien (i.e. ERISA, Medicare, Medicaid, or filed medical lien), the made whole doctrine may prevent them from receiving full reimbursement.




Why do I have to pay back health insurance expenses?


An injured victim is required to pay back all medical expenses associated with their personal injury claim out of any settlement. This includes medical bills paid by health insurance carriers. The reason for this obligation is that if a personal injury victim settles their case for the value of their medical expenses, the victim cannot receive a windfall for those medical expenses. Instead, the personal injury victim is expected to reimburse all medical expenses out of the settlement. This duty is required and enforceable by law, though there can be certain exceptions such as those protected by the made whole statute.




Can I be sued for not paying a subrogation claim?


A personal injury victim can be sued for not reimbursing their health insurance under a subrogation claim. The health insurance company’s right to subrogation (or reimbursement) is a legally protected right, though it can be subject to by the made-whole laws in Georgia. ERISA health plans are entitled to full reimbursement, and they are not subject to the made whole statutes.





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