PERSONAL INJURY FAQ

 

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 Wheale Law Firm's clients.

 

Attorney Consultation FAQ

What is a deposition?


A deposition is a sworn, out-of-court testimony given by a party or a witness in a civil lawsuit. It is made under oath, under penalty of perjury. At a deposition, lawyers will direct a series of questions towards the party or witness. The party or witness will respond to each of the questions, and the responses will be transcribed into writing.




What is the purpose of the deposition?


The purpose of the deposition is two part: first, it allow the parties to investigate the testifying party or witness’s knowledge about any factual or legal issues with the case. Secondly, it preserves testimony for later use, such as at trial, if the testifying witness or party becomes unavailable.




What is a deponent?


The deponent is the party or witness whose testimony is being provided, under oath, at a deposition.




Do I have to give a deposition?


A party to the case, especially a plaintiff, is required to give a deposition. Failure to attend a deposition can lead to sanctions against the plaintiff, personally, such as an assessment for costs to the court and the defendant as well as dismissal of the Complaint. The plaintiff is expected to cooperate and make himself available for a deposition so the defendant’s attorneys can investigate your claims for injuries.




What are the rules of a deposition?


There are several basic rules for a party being deposed:

  • Tell the truth and be composed and professional (don’t argue);
  • Review documents/exhibits carefully and fully before answering questions regarding those documents;
  • Don’t be afraid to request a break;
  • If the question is unclear to you, request for clarification;
  • It’s okay if you don’t know the answer – simply state as much;
  • Answer the question asked and short answers are best;
  • Speak slowly and clearly
  • Provide verbal responses (head nods cannot be transcribed);
Remember, depositions are under oath and penalty of perjury.




Are depositions admissible at trial?


Sworn testimony provided during a deposition is admissible evidence, for any purpose, including trial. The attorneys will use deposition testimony to compel additional discovery, support or oppose dispositive motions (such as motions for Summary Judgment), and to develop or impeach testimony at trial.




Who can attend my deposition?


At any deposition, there will always be the basic participants attending: the deponent, or testifying witness or party; the court reporter (and possibly, videographer); and each party’s attorney. However, in rare cases and in the absence of an order from the court, anyone is allowed to attend. For instance, a party may have an expert or other consultant attend to help formulate follow-up questions, especially when the issues are complex or technical.




Who pays for my deposition?


The defendant pays for the costs of taking a plaintiff’s deposition. These costs include paying for the attendance of the court report and, in some cases, a videographer. The plaintiff is not entitled to reimbursement for travel, time off from work, or other costs for their time.




What happens after a deposition?


After a deposition, the court reporter spends a few weeks transcribing the deposition. If the deponent has reserved the right to review the deposition, a copy is delivered to the deponent to allow him to correct any errors or clarify any responses on what is called an “Errata Sheet.” If the deponent does not reserve the right to review the deposition, a final copy of the original deposition and exhibits are sent to the party who noticed the deposition as original evidence. Copies are provided to any party requesting a copy and willing to pay the costs.




Do judges read depositions?


Anybody can read a deposition transcription, and a judge will read those portions submitted in support or opposition to a legal brief. You should presume that the entire deposition can and will be read by the judge.




How long does a deposition usually take?


Depositions usually last between one and three hours. The complexities of the issues as well as the responses of the deponent can cause the deposition to be longer. In Georgia, the deposition is limited to one day and seven hours, unless the parties agree otherwise or are ordered by the Court.




What should you not do at a deposition?


A deposition is not a conversation, and there are a few things you should not do at a deposition:

  • Do no lie;
  • Avoid volunteering information that’s not requested;
  • Do not let the examiner put words in your mouth – own your answers;
  • Do not answer a question that is unclear or you don’t understand;
  • Do not lose your temper, or argue with the examining attorney; and
  • Do not guess or speculate.




What questions are asked at a deposition?


Anything can be asked at a deposition, including question that do not seem relevant to your case. Obvious areas of questioning will relate to the underlying incident that caused the legal dispute (i.e. a car accident), your medical treatment and bills, and similar questions. Other topics will likely include your employment history, medical history, criminal history, family history, and educational history. An examining attorney is not allowed to badger, harass, or insult you at a deposition.




Can you plead the Fifth in a deposition?


A party can plead the fifth in response to a specific question at a deposition, but it’s not advisable unless it is to avoid criminal liability. Pleading the fifth in a civil case will allow the defendant to legally draw a favorable inference from your answer. In short, it’s better not to plead the fifth unless instructed by your attorney or to avoid criminal liability.




What happens if I skip my deposition?


If you skip your deposition, you will be personally responsible for any sanctions awarded by the judge. This sanctions could include an assessment for costs to the court and the defendant as well as dismissal of the entire case. The plaintiff is expected to cooperate and make himself available for a deposition so the defendant’s attorneys can investigate your claims for injuries.





 

Civil Justice System FAQ

What is a deposition?


A deposition is a sworn, out-of-court testimony given by a party or a witness in a civil lawsuit. It is made under oath, under penalty of perjury. At a deposition, lawyers will direct a series of questions towards the party or witness. The party or witness will respond to each of the questions, and the responses will be transcribed into writing.




What is the purpose of the deposition?


The purpose of the deposition is two part: first, it allow the parties to investigate the testifying party or witness’s knowledge about any factual or legal issues with the case. Secondly, it preserves testimony for later use, such as at trial, if the testifying witness or party becomes unavailable.




What is a deponent?


The deponent is the party or witness whose testimony is being provided, under oath, at a deposition.




Do I have to give a deposition?


A party to the case, especially a plaintiff, is required to give a deposition. Failure to attend a deposition can lead to sanctions against the plaintiff, personally, such as an assessment for costs to the court and the defendant as well as dismissal of the Complaint. The plaintiff is expected to cooperate and make himself available for a deposition so the defendant’s attorneys can investigate your claims for injuries.




What are the rules of a deposition?


There are several basic rules for a party being deposed:

  • Tell the truth and be composed and professional (don’t argue);
  • Review documents/exhibits carefully and fully before answering questions regarding those documents;
  • Don’t be afraid to request a break;
  • If the question is unclear to you, request for clarification;
  • It’s okay if you don’t know the answer – simply state as much;
  • Answer the question asked and short answers are best;
  • Speak slowly and clearly
  • Provide verbal responses (head nods cannot be transcribed);
Remember, depositions are under oath and penalty of perjury.




Are depositions admissible at trial?


Sworn testimony provided during a deposition is admissible evidence, for any purpose, including trial. The attorneys will use deposition testimony to compel additional discovery, support or oppose dispositive motions (such as motions for Summary Judgment), and to develop or impeach testimony at trial.




Who can attend my deposition?


At any deposition, there will always be the basic participants attending: the deponent, or testifying witness or party; the court reporter (and possibly, videographer); and each party’s attorney. However, in rare cases and in the absence of an order from the court, anyone is allowed to attend. For instance, a party may have an expert or other consultant attend to help formulate follow-up questions, especially when the issues are complex or technical.




Who pays for my deposition?


The defendant pays for the costs of taking a plaintiff’s deposition. These costs include paying for the attendance of the court report and, in some cases, a videographer. The plaintiff is not entitled to reimbursement for travel, time off from work, or other costs for their time.




What happens after a deposition?


After a deposition, the court reporter spends a few weeks transcribing the deposition. If the deponent has reserved the right to review the deposition, a copy is delivered to the deponent to allow him to correct any errors or clarify any responses on what is called an “Errata Sheet.” If the deponent does not reserve the right to review the deposition, a final copy of the original deposition and exhibits are sent to the party who noticed the deposition as original evidence. Copies are provided to any party requesting a copy and willing to pay the costs.




Do judges read depositions?


Anybody can read a deposition transcription, and a judge will read those portions submitted in support or opposition to a legal brief. You should presume that the entire deposition can and will be read by the judge.




How long does a deposition usually take?


Depositions usually last between one and three hours. The complexities of the issues as well as the responses of the deponent can cause the deposition to be longer. In Georgia, the deposition is limited to one day and seven hours, unless the parties agree otherwise or are ordered by the Court.




What should you not do at a deposition?


A deposition is not a conversation, and there are a few things you should not do at a deposition:

  • Do no lie;
  • Avoid volunteering information that’s not requested;
  • Do not let the examiner put words in your mouth – own your answers;
  • Do not answer a question that is unclear or you don’t understand;
  • Do not lose your temper, or argue with the examining attorney; and
  • Do not guess or speculate.




What questions are asked at a deposition?


Anything can be asked at a deposition, including question that do not seem relevant to your case. Obvious areas of questioning will relate to the underlying incident that caused the legal dispute (i.e. a car accident), your medical treatment and bills, and similar questions. Other topics will likely include your employment history, medical history, criminal history, family history, and educational history. An examining attorney is not allowed to badger, harass, or insult you at a deposition.




Can you plead the Fifth in a deposition?


A party can plead the fifth in response to a specific question at a deposition, but it’s not advisable unless it is to avoid criminal liability. Pleading the fifth in a civil case will allow the defendant to legally draw a favorable inference from your answer. In short, it’s better not to plead the fifth unless instructed by your attorney or to avoid criminal liability.




What happens if I skip my deposition?


If you skip your deposition, you will be personally responsible for any sanctions awarded by the judge. This sanctions could include an assessment for costs to the court and the defendant as well as dismissal of the entire case. The plaintiff is expected to cooperate and make himself available for a deposition so the defendant’s attorneys can investigate your claims for injuries.





 

Negligence FAQ

What is negligence?


In its simplest terms, negligence is when someone fails to act in a careful, reasonable manner and, as a result, damages occur. It’s an objective measure, judged by the “reasonable person” standard, under the circumstances. The damages can include bodily harm like a broken arm, or property damages like a totaled vehicle. An individual who acts negligently does not intend to cause harm, but harm can result from their unreasonable actions.




What are the elements of negligence?


In Georgia, the four elements of negligence are (1) duty; (2) breach of duty; (3) causation; and (4) damages. The injured party has the burden of proving each of these elements:

  • Duty: This refers to an obligation or responsibility to act in a reasonable manner toward other individuals. In short, just because you suffer an injury does not mean the negligent person can be held legally responsible. It must first be shown that they owed you a duty of care to act reasonably, based on their relationship to you.

  • Breach of duty: The defendant acted in an irresponsible or unreasonable manner with regard to the status, or relationship, toward you. When a person breaches a duty, it is said they violated their duty of care.

  • Causation: The actions of the negligent individual caused the car wreck, injury, accident, etc. There are two types of legal causes: actual and proximate. Both must be met in order to hold a negligent individual responsible.

  • Damages: You must prove injuries or damages arose from the defendant’s actions. Hypothetical or potential injuries don’t count.




How is duty determined?


An individual’s duty arises primarily from their relationship, or status, towards others.

For instance, a negligent driver who causes a car accident owed a duty to drive safely to the second driver (driver A) whose car was hit. The negligent driver may also be responsible for causing an unrelated, third driver (driver B) to be late to work and miss out on an important promotion due to the traffic caused by the collision. The negligent driver owed a legal duty to driver A – namely, not to drive carelessly and cause property damage and bodily injury to driver A. But, no legal duty is recognized to driver B. Although driver B suffered “damages” caused by the collision, the negligent driver cannot be held legally responsible as accidents on the roadway happen and are foreseeable.




What is an actual cause?


Actual cause is the literal cause for one’s injury, also described as the cause-in-fact. It is determined by applying the “but for” test. For instance “but for” the negligent driver speeding, the collision would not have occurred.




What is proximate cause?


Proximate cause is the legal cause for an injury that, as a matter of policy, the law is willing to recognize. Grounded in foreseeability, it is a way to set a limit on liability for damages or injuries that are tenuously related to the negligent act. The primary and most direct cause for an injury or damages is usually known as the proximate cause. Proving proximate cause can be difficult because it does not have to be the first event to take place.




What is an intervening cause?


An intervening cause, or intervening act, is one that breaks the chain of causation. When the defendant has carried out their negligent act, and then another, unrelatedevent occurs afterwards and intervenes to be the primary cause to a person’s injuries, it is an intervening cause.

For example, if a negligent person (person A) leaves their keys in their unlocked vehicle in their driveway. But, a second negligent person (person B) trespasses on to the property, steals the vehicle, and gets in a car accident. Person B’s subsequent criminal and negligent actions are said to be an intervening cause, and Person A cannot be held responsible.

Stated another way, an intervening cause can shield the original negligent person (person A) from legal liability.




What is negligence per se?


Negligence per se is when a person violates a statute or regulation designed for the safety of other individuals. If someone is injured as a result of a violation of a safety statute, the negligent individual is legally recognized as being “per se” negligent and no further proof need be shown. In other words, it is not necessary to question whether a reasonable person would have acted in the same manner under the circumstances.




What is comparative negligence?


Comparative negligence applies when both individuals acted negligently and share responsibility for one of the individual's injuries. The jury must allocate fault in proportion to each individual's negligence - or responsibility - for causing the injury. If the injured person's negligence is found to be 51% or more at-fault, he is not entitled to any recovery in Georgia. As an example, one individual (person A) is inebriated in a bar or restaurant when he slips and falls due to plastic trash on the floor. It is proven through surveillance footage that the plastic trash had been ignored by several restaurant employees for nearly an hour, and it presented a fall risk. But, the plastic trash was clearly visible as dozens of other employees and patrons were able to avoid it. A jury could find that person A is 51% or more at-fault because he was inebriated and should have seen the plastic trash, but for his impairment. In that case, person A can not recover any compensation for his injuries due to his comparative fault exceeding 51%. Using the same example, let's say person A is found to be 33.33% at fault, and the restaurant is found to be 66.66% at fault. In that case, person A can only recover compensation, or damages, in proportion to the restaurant's fault. So, if person A has $10,000 in damages, he would only be entitled to recover $6,666.66 from the restaurant, due to his comparative negligence.





 

Pre-Suit Investigation FAQ

What is a mediation?


A mediation is an informal process to help two disputing parties reach a quicker and cheaper resolution to their dispute. An independent third-party – a mediator – listens each party’s case, and identifies the obstacles that have prevented the dispute from resolving. The mediator attempts to help the parties overcome these obstacles to reach a compromised agreement on a final settlement or resolution to the case. The mediator cannot force any party to settle their case.




What happens during mediation?


During a mediation, the parties and mediator usually begin by meeting in one room, together. Each side is given the option to provide an opening statement to summarize the facts and evidence as well as the reasons for justifying their position. The parties then retreat to their own separate rooms where the mediator visits, individually. The parties exchange offers and counteroffers with help from the mediator until they settle the case or, alternatively, reach an impasse.




What are the advantages of mediation?


There are several advantages to mediation. The mediator is usually an experienced and trusted attorney that all parties respect. Mediation lacks the formality and costs in time and resources of a formal trial. Scheduling a mediation is much easier to do than trial, it is much shorter than trial, and it does not have the complex rules and processes required by trial. Finally, parties usually participate in mediation by agreement, so each party is more committed to compromise, and there is a higher likelihood of success.




Who selects the mediator?


Unless the court orders the parties to use a specific mediator, which happens occasionally, the parties and their counsel negotiate and select a mediator together.




Who represents the defendant at mediation?


The defendant is represented by his attorney at the mediation. In addition, it is not uncommon for an insurance adjuster to personally attend the mediation as well. The defense attorney can only settle the case when he receives authorization from the mediator. For this reason, it’s important to make a good impression on the insurance adjuster.




Can you bring evidence to mediation?


You can bring evidence to mediation, but mediation is not trial, so there is not a requirement to present evidence. If a case reaches mediation, the parties are already aware of the evidence available. Most likely, the attorneys have already provided the mediator a position statement summarizing the evidence in advance of the mediation as well.




What happens if mediation is unsuccessful?


If mediation is unsuccessful, the parties simply resume the civil case through the court system. There is no penalty if the parties fail to reach a compromised settlement at mediation.




How much does it cost to hire a mediator?


The costs of mediation vary depending on the mediator as well as the complexities and value of the case. Typically, a mediator charges between $200 - $500 dollars an hour as well as administrative and meal costs. Some mediators charge full and half day rates as well.




Who pays for a mediation?


The parties usually share the costs of mediation equally. In rarer circumstances, one party can agree to pay the entire cost as part of a mediated agreement.




How long does mediation take?


A mediation can last anywhere from two hours to a full day.




Is it better to mediate or to go to trial?


It is almost always advisable to try and settle the case through mediation before trial. Trials carry no guarantees of favorable resolution. They are complex, expensive, and can last for several days. In most cases, reaching a compromised settlement between the parties is achievable and desirable, and it should be pursued through mediation, if possible.




Do I need to bring a lunch to mediation?


Generally, the mediator and his office provide food and beverages, including snacks and meals. These expenses are usually built in to the cost of mediation.




How should I dress for mediation?


You should dress to be comfortable, as mediation can lost for several hours or even the whole day. Usually, this means dressing semi-formally in order to make a favorable impression on the mediator as well as the insurance adjuster representing the defendant.





Demand Letters 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.





 
 

Litigation FAQ

What is negligence?


In its simplest terms, negligence is when someone fails to act in a careful, reasonable manner and, as a result, damages occur. It’s an objective measure, judged by the “reasonable person” standard, under the circumstances. The damages can include bodily harm like a broken arm, or property damages like a totaled vehicle. An individual who acts negligently does not intend to cause harm, but harm can result from their unreasonable actions.




What are the elements of negligence?


In Georgia, the four elements of negligence are (1) duty; (2) breach of duty; (3) causation; and (4) damages. The injured party has the burden of proving each of these elements:

  • Duty: This refers to an obligation or responsibility to act in a reasonable manner toward other individuals. In short, just because you suffer an injury does not mean the negligent person can be held legally responsible. It must first be shown that they owed you a duty of care to act reasonably, based on their relationship to you.

  • Breach of duty: The defendant acted in an irresponsible or unreasonable manner with regard to the status, or relationship, toward you. When a person breaches a duty, it is said they violated their duty of care.

  • Causation: The actions of the negligent individual caused the car wreck, injury, accident, etc. There are two types of legal causes: actual and proximate. Both must be met in order to hold a negligent individual responsible.

  • Damages: You must prove injuries or damages arose from the defendant’s actions. Hypothetical or potential injuries don’t count.




How is duty determined?


An individual’s duty arises primarily from their relationship, or status, towards others.

For instance, a negligent driver who causes a car accident owed a duty to drive safely to the second driver (driver A) whose car was hit. The negligent driver may also be responsible for causing an unrelated, third driver (driver B) to be late to work and miss out on an important promotion due to the traffic caused by the collision. The negligent driver owed a legal duty to driver A – namely, not to drive carelessly and cause property damage and bodily injury to driver A. But, no legal duty is recognized to driver B. Although driver B suffered “damages” caused by the collision, the negligent driver cannot be held legally responsible as accidents on the roadway happen and are foreseeable.




What is an actual cause?


Actual cause is the literal cause for one’s injury, also described as the cause-in-fact. It is determined by applying the “but for” test. For instance “but for” the negligent driver speeding, the collision would not have occurred.




What is proximate cause?


Proximate cause is the legal cause for an injury that, as a matter of policy, the law is willing to recognize. Grounded in foreseeability, it is a way to set a limit on liability for damages or injuries that are tenuously related to the negligent act. The primary and most direct cause for an injury or damages is usually known as the proximate cause. Proving proximate cause can be difficult because it does not have to be the first event to take place.




What is an intervening cause?


An intervening cause, or intervening act, is one that breaks the chain of causation. When the defendant has carried out their negligent act, and then another, unrelatedevent occurs afterwards and intervenes to be the primary cause to a person’s injuries, it is an intervening cause.

For example, if a negligent person (person A) leaves their keys in their unlocked vehicle in their driveway. But, a second negligent person (person B) trespasses on to the property, steals the vehicle, and gets in a car accident. Person B’s subsequent criminal and negligent actions are said to be an intervening cause, and Person A cannot be held responsible.

Stated another way, an intervening cause can shield the original negligent person (person A) from legal liability.




What is negligence per se?


Negligence per se is when a person violates a statute or regulation designed for the safety of other individuals. If someone is injured as a result of a violation of a safety statute, the negligent individual is legally recognized as being “per se” negligent and no further proof need be shown. In other words, it is not necessary to question whether a reasonable person would have acted in the same manner under the circumstances.




What is comparative negligence?


Comparative negligence applies when both individuals acted negligently and share responsibility for one of the individual's injuries. The jury must allocate fault in proportion to each individual's negligence - or responsibility - for causing the injury. If the injured person's negligence is found to be 51% or more at-fault, he is not entitled to any recovery in Georgia. As an example, one individual (person A) is inebriated in a bar or restaurant when he slips and falls due to plastic trash on the floor. It is proven through surveillance footage that the plastic trash had been ignored by several restaurant employees for nearly an hour, and it presented a fall risk. But, the plastic trash was clearly visible as dozens of other employees and patrons were able to avoid it. A jury could find that person A is 51% or more at-fault because he was inebriated and should have seen the plastic trash, but for his impairment. In that case, person A can not recover any compensation for his injuries due to his comparative fault exceeding 51%. Using the same example, let's say person A is found to be 33.33% at fault, and the restaurant is found to be 66.66% at fault. In that case, person A can only recover compensation, or damages, in proportion to the restaurant's fault. So, if person A has $10,000 in damages, he would only be entitled to recover $6,666.66 from the restaurant, due to his comparative negligence.





 

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

How can i join in VR?


For joining our events in VR you need a Windows PC with a dedicated graphics card and a PC-VR-Headset. You also have to install the Sansar client. The system requirements can be found here.

You can download Sansar here.




Do I need a VR headset to join? Can i use a Mac or my smartphone?


No! You can also experience the virtual Bootshaus without a VR headset. If you have a Windows PC or Laptop with a dedicated graphicscard just download the Sansar client.

If you don't have a Windows PC you can watch a livestream of the event (e.g. on Twitch) in any webbrowser (e.g. on Mac). You will find links to the livestreams in the specific event listing on this website.

For mobile users: There is a Sansar app available to download for Android and iOS. You will be able to choose from different camera angles while watching the event via the app.




Is it free?


Our first event, elrow Kaos Garden, will be free on all platforms. This includes VR, PC, Livestreams and the Sansar App.

There will be a small fee for entering the future events using PC/VR.
The livestreams and Sansar app will still be free to use.




When joining on PC/VR, do i see other people?


Sansar is a fully fledged social experience, so the answer is yes. You can chat and talk to other people via text chat or voice chat. Everybody can create his/her own avatar and will be represented by this avatar in the game world – just as you know it from regular video games.




What are the upcoming events?


You can find the upcoming events here.




How do i join on PC/VR?


  1. Download Sansar from here.
  2. Create an account.
  3. Customize your avatar.
  4. Explore the different worlds, start practicing your moves and get new stuff for your avatar.
  5. Soon we'll give you the link to get into our virtual Bootshaus venue.





 

Depositions FAQ

What is a deposition?


A deposition is a sworn, out-of-court testimony given by a party or a witness in a civil lawsuit. It is made under oath, under penalty of perjury. At a deposition, lawyers will direct a series of questions towards the party or witness. The party or witness will respond to each of the questions, and the responses will be transcribed into writing.




What is the purpose of the deposition?


The purpose of the deposition is two part: first, it allow the parties to investigate the testifying party or witness’s knowledge about any factual or legal issues with the case. Secondly, it preserves testimony for later use, such as at trial, if the testifying witness or party becomes unavailable.




What is a deponent?


The deponent is the party or witness whose testimony is being provided, under oath, at a deposition.




Do I have to give a deposition?


A party to the case, especially a plaintiff, is required to give a deposition. Failure to attend a deposition can lead to sanctions against the plaintiff, personally, such as an assessment for costs to the court and the defendant as well as dismissal of the Complaint. The plaintiff is expected to cooperate and make himself available for a deposition so the defendant’s attorneys can investigate your claims for injuries.




What are the rules of a deposition?


There are several basic rules for a party being deposed:

  • Tell the truth and be composed and professional (don’t argue);
  • Review documents/exhibits carefully and fully before answering questions regarding those documents;
  • Don’t be afraid to request a break;
  • If the question is unclear to you, request for clarification;
  • It’s okay if you don’t know the answer – simply state as much;
  • Answer the question asked and short answers are best;
  • Speak slowly and clearly
  • Provide verbal responses (head nods cannot be transcribed);
Remember, depositions are under oath and penalty of perjury.




Are depositions admissible at trial?


Sworn testimony provided during a deposition is admissible evidence, for any purpose, including trial. The attorneys will use deposition testimony to compel additional discovery, support or oppose dispositive motions (such as motions for Summary Judgment), and to develop or impeach testimony at trial.




Who can attend my deposition?


At any deposition, there will always be the basic participants attending: the deponent, or testifying witness or party; the court reporter (and possibly, videographer); and each party’s attorney. However, in rare cases and in the absence of an order from the court, anyone is allowed to attend. For instance, a party may have an expert or other consultant attend to help formulate follow-up questions, especially when the issues are complex or technical.




Who pays for my deposition?


The defendant pays for the costs of taking a plaintiff’s deposition. These costs include paying for the attendance of the court report and, in some cases, a videographer. The plaintiff is not entitled to reimbursement for travel, time off from work, or other costs for their time.




What happens after a deposition?


After a deposition, the court reporter spends a few weeks transcribing the deposition. If the deponent has reserved the right to review the deposition, a copy is delivered to the deponent to allow him to correct any errors or clarify any responses on what is called an “Errata Sheet.” If the deponent does not reserve the right to review the deposition, a final copy of the original deposition and exhibits are sent to the party who noticed the deposition as original evidence. Copies are provided to any party requesting a copy and willing to pay the costs.




Do judges read depositions?


Anybody can read a deposition transcription, and a judge will read those portions submitted in support or opposition to a legal brief. You should presume that the entire deposition can and will be read by the judge.




How long does a deposition usually take?


Depositions usually last between one and three hours. The complexities of the issues as well as the responses of the deponent can cause the deposition to be longer. In Georgia, the deposition is limited to one day and seven hours, unless the parties agree otherwise or are ordered by the Court.




What should you not do at a deposition?


A deposition is not a conversation, and there are a few things you should not do at a deposition:

  • Do no lie;
  • Avoid volunteering information that’s not requested;
  • Do not let the examiner put words in your mouth – own your answers;
  • Do not answer a question that is unclear or you don’t understand;
  • Do not lose your temper, or argue with the examining attorney; and
  • Do not guess or speculate.




What questions are asked at a deposition?


Anything can be asked at a deposition, including question that do not seem relevant to your case. Obvious areas of questioning will relate to the underlying incident that caused the legal dispute (i.e. a car accident), your medical treatment and bills, and similar questions. Other topics will likely include your employment history, medical history, criminal history, family history, and educational history. An examining attorney is not allowed to badger, harass, or insult you at a deposition.




Can you plead the Fifth in a deposition?


A party can plead the fifth in response to a specific question at a deposition, but it’s not advisable unless it is to avoid criminal liability. Pleading the fifth in a civil case will allow the defendant to legally draw a favorable inference from your answer. In short, it’s better not to plead the fifth unless instructed by your attorney or to avoid criminal liability.




What happens if I skip my deposition?


If you skip your deposition, you will be personally responsible for any sanctions awarded by the judge. This sanctions could include an assessment for costs to the court and the defendant as well as dismissal of the entire case. The plaintiff is expected to cooperate and make himself available for a deposition so the defendant’s attorneys can investigate your claims for injuries.





 

Summary Judgment FAQ

How can i join in VR?


For joining our events in VR you need a Windows PC with a dedicated graphics card and a PC-VR-Headset. You also have to install the Sansar client. The system requirements can be found here.

You can download Sansar here.




Do I need a VR headset to join? Can i use a Mac or my smartphone?


No! You can also experience the virtual Bootshaus without a VR headset. If you have a Windows PC or Laptop with a dedicated graphicscard just download the Sansar client.

If you don't have a Windows PC you can watch a livestream of the event (e.g. on Twitch) in any webbrowser (e.g. on Mac). You will find links to the livestreams in the specific event listing on this website.

For mobile users: There is a Sansar app available to download for Android and iOS. You will be able to choose from different camera angles while watching the event via the app.




Is it free?


Our first event, elrow Kaos Garden, will be free on all platforms. This includes VR, PC, Livestreams and the Sansar App.

There will be a small fee for entering the future events using PC/VR.
The livestreams and Sansar app will still be free to use.




When joining on PC/VR, do i see other people?


Sansar is a fully fledged social experience, so the answer is yes. You can chat and talk to other people via text chat or voice chat. Everybody can create his/her own avatar and will be represented by this avatar in the game world – just as you know it from regular video games.




What are the upcoming events?


You can find the upcoming events here.




How do i join on PC/VR?


  1. Download Sansar from here.
  2. Create an account.
  3. Customize your avatar.
  4. Explore the different worlds, start practicing your moves and get new stuff for your avatar.
  5. Soon we'll give you the link to get into our virtual Bootshaus venue.





 

Mediation FAQ

What is a mediation?


A mediation is an informal process to help two disputing parties reach a quicker and cheaper resolution to their dispute. An independent third-party – a mediator – listens each party’s case, and identifies the obstacles that have prevented the dispute from resolving. The mediator attempts to help the parties overcome these obstacles to reach a compromised agreement on a final settlement or resolution to the case. The mediator cannot force any party to settle their case.




What happens during mediation?


During a mediation, the parties and mediator usually begin by meeting in one room, together. Each side is given the option to provide an opening statement to summarize the facts and evidence as well as the reasons for justifying their position. The parties then retreat to their own separate rooms where the mediator visits, individually. The parties exchange offers and counteroffers with help from the mediator until they settle the case or, alternatively, reach an impasse.




What are the advantages of mediation?


There are several advantages to mediation. The mediator is usually an experienced and trusted attorney that all parties respect. Mediation lacks the formality and costs in time and resources of a formal trial. Scheduling a mediation is much easier to do than trial, it is much shorter than trial, and it does not have the complex rules and processes required by trial. Finally, parties usually participate in mediation by agreement, so each party is more committed to compromise, and there is a higher likelihood of success.




Who selects the mediator?


Unless the court orders the parties to use a specific mediator, which happens occasionally, the parties and their counsel negotiate and select a mediator together.




Who represents the defendant at mediation?


The defendant is represented by his attorney at the mediation. In addition, it is not uncommon for an insurance adjuster to personally attend the mediation as well. The defense attorney can only settle the case when he receives authorization from the mediator. For this reason, it’s important to make a good impression on the insurance adjuster.




Can you bring evidence to mediation?


You can bring evidence to mediation, but mediation is not trial, so there is not a requirement to present evidence. If a case reaches mediation, the parties are already aware of the evidence available. Most likely, the attorneys have already provided the mediator a position statement summarizing the evidence in advance of the mediation as well.




What happens if mediation is unsuccessful?


If mediation is unsuccessful, the parties simply resume the civil case through the court system. There is no penalty if the parties fail to reach a compromised settlement at mediation.




How much does it cost to hire a mediator?


The costs of mediation vary depending on the mediator as well as the complexities and value of the case. Typically, a mediator charges between $200 - $500 dollars an hour as well as administrative and meal costs. Some mediators charge full and half day rates as well.




Who pays for a mediation?


The parties usually share the costs of mediation equally. In rarer circumstances, one party can agree to pay the entire cost as part of a mediated agreement.




How long does mediation take?


A mediation can last anywhere from two hours to a full day.




Is it better to mediate or to go to trial?


It is almost always advisable to try and settle the case through mediation before trial. Trials carry no guarantees of favorable resolution. They are complex, expensive, and can last for several days. In most cases, reaching a compromised settlement between the parties is achievable and desirable, and it should be pursued through mediation, if possible.




Do I need to bring a lunch to mediation?


Generally, the mediator and his office provide food and beverages, including snacks and meals. These expenses are usually built in to the cost of mediation.




How should I dress for mediation?


You should dress to be comfortable, as mediation can lost for several hours or even the whole day. Usually, this means dressing semi-formally in order to make a favorable impression on the mediator as well as the insurance adjuster representing the defendant.





 

Trial FAQ

What is a mediation?


A mediation is an informal process to help two disputing parties reach a quicker and cheaper resolution to their dispute. An independent third-party – a mediator – listens each party’s case, and identifies the obstacles that have prevented the dispute from resolving. The mediator attempts to help the parties overcome these obstacles to reach a compromised agreement on a final settlement or resolution to the case. The mediator cannot force any party to settle their case.




What happens during mediation?


During a mediation, the parties and mediator usually begin by meeting in one room, together. Each side is given the option to provide an opening statement to summarize the facts and evidence as well as the reasons for justifying their position. The parties then retreat to their own separate rooms where the mediator visits, individually. The parties exchange offers and counteroffers with help from the mediator until they settle the case or, alternatively, reach an impasse.




What are the advantages of mediation?


There are several advantages to mediation. The mediator is usually an experienced and trusted attorney that all parties respect. Mediation lacks the formality and costs in time and resources of a formal trial. Scheduling a mediation is much easier to do than trial, it is much shorter than trial, and it does not have the complex rules and processes required by trial. Finally, parties usually participate in mediation by agreement, so each party is more committed to compromise, and there is a higher likelihood of success.




Who selects the mediator?


Unless the court orders the parties to use a specific mediator, which happens occasionally, the parties and their counsel negotiate and select a mediator together.




Who represents the defendant at mediation?


The defendant is represented by his attorney at the mediation. In addition, it is not uncommon for an insurance adjuster to personally attend the mediation as well. The defense attorney can only settle the case when he receives authorization from the mediator. For this reason, it’s important to make a good impression on the insurance adjuster.




Can you bring evidence to mediation?


You can bring evidence to mediation, but mediation is not trial, so there is not a requirement to present evidence. If a case reaches mediation, the parties are already aware of the evidence available. Most likely, the attorneys have already provided the mediator a position statement summarizing the evidence in advance of the mediation as well.




What happens if mediation is unsuccessful?


If mediation is unsuccessful, the parties simply resume the civil case through the court system. There is no penalty if the parties fail to reach a compromised settlement at mediation.




How much does it cost to hire a mediator?


The costs of mediation vary depending on the mediator as well as the complexities and value of the case. Typically, a mediator charges between $200 - $500 dollars an hour as well as administrative and meal costs. Some mediators charge full and half day rates as well.




Who pays for a mediation?


The parties usually share the costs of mediation equally. In rarer circumstances, one party can agree to pay the entire cost as part of a mediated agreement.




How long does mediation take?


A mediation can last anywhere from two hours to a full day.




Is it better to mediate or to go to trial?


It is almost always advisable to try and settle the case through mediation before trial. Trials carry no guarantees of favorable resolution. They are complex, expensive, and can last for several days. In most cases, reaching a compromised settlement between the parties is achievable and desirable, and it should be pursued through mediation, if possible.




Do I need to bring a lunch to mediation?


Generally, the mediator and his office provide food and beverages, including snacks and meals. These expenses are usually built in to the cost of mediation.




How should I dress for mediation?


You should dress to be comfortable, as mediation can lost for several hours or even the whole day. Usually, this means dressing semi-formally in order to make a favorable impression on the mediator as well as the insurance adjuster representing the defendant.





 

Settlement FAQ

How can i join in VR?


For joining our events in VR you need a Windows PC with a dedicated graphics card and a PC-VR-Headset. You also have to install the Sansar client. The system requirements can be found here.

You can download Sansar here.




Do I need a VR headset to join? Can i use a Mac or my smartphone?


No! You can also experience the virtual Bootshaus without a VR headset. If you have a Windows PC or Laptop with a dedicated graphicscard just download the Sansar client.

If you don't have a Windows PC you can watch a livestream of the event (e.g. on Twitch) in any webbrowser (e.g. on Mac). You will find links to the livestreams in the specific event listing on this website.

For mobile users: There is a Sansar app available to download for Android and iOS. You will be able to choose from different camera angles while watching the event via the app.




Is it free?


Our first event, elrow Kaos Garden, will be free on all platforms. This includes VR, PC, Livestreams and the Sansar App.

There will be a small fee for entering the future events using PC/VR.
The livestreams and Sansar app will still be free to use.




When joining on PC/VR, do i see other people?


Sansar is a fully fledged social experience, so the answer is yes. You can chat and talk to other people via text chat or voice chat. Everybody can create his/her own avatar and will be represented by this avatar in the game world – just as you know it from regular video games.




What are the upcoming events?


You can find the upcoming events here.




How do i join on PC/VR?


  1. Download Sansar from here.
  2. Create an account.
  3. Customize your avatar.
  4. Explore the different worlds, start practicing your moves and get new stuff for your avatar.
  5. Soon we'll give you the link to get into our virtual Bootshaus venue.





 

Health Insurance and Subrogation FAQ

What is negligence?


In its simplest terms, negligence is when someone fails to act in a careful, reasonable manner and, as a result, damages occur. It’s an objective measure, judged by the “reasonable person” standard, under the circumstances. The damages can include bodily harm like a broken arm, or property damages like a totaled vehicle. An individual who acts negligently does not intend to cause harm, but harm can result from their unreasonable actions.




What are the elements of negligence?


In Georgia, the four elements of negligence are (1) duty; (2) breach of duty; (3) causation; and (4) damages. The injured party has the burden of proving each of these elements:

  • Duty: This refers to an obligation or responsibility to act in a reasonable manner toward other individuals. In short, just because you suffer an injury does not mean the negligent person can be held legally responsible. It must first be shown that they owed you a duty of care to act reasonably, based on their relationship to you.

  • Breach of duty: The defendant acted in an irresponsible or unreasonable manner with regard to the status, or relationship, toward you. When a person breaches a duty, it is said they violated their duty of care.

  • Causation: The actions of the negligent individual caused the car wreck, injury, accident, etc. There are two types of legal causes: actual and proximate. Both must be met in order to hold a negligent individual responsible.

  • Damages: You must prove injuries or damages arose from the defendant’s actions. Hypothetical or potential injuries don’t count.




How is duty determined?


An individual’s duty arises primarily from their relationship, or status, towards others.

For instance, a negligent driver who causes a car accident owed a duty to drive safely to the second driver (driver A) whose car was hit. The negligent driver may also be responsible for causing an unrelated, third driver (driver B) to be late to work and miss out on an important promotion due to the traffic caused by the collision. The negligent driver owed a legal duty to driver A – namely, not to drive carelessly and cause property damage and bodily injury to driver A. But, no legal duty is recognized to driver B. Although driver B suffered “damages” caused by the collision, the negligent driver cannot be held legally responsible as accidents on the roadway happen and are foreseeable.




What is an actual cause?


Actual cause is the literal cause for one’s injury, also described as the cause-in-fact. It is determined by applying the “but for” test. For instance “but for” the negligent driver speeding, the collision would not have occurred.




What is proximate cause?


Proximate cause is the legal cause for an injury that, as a matter of policy, the law is willing to recognize. Grounded in foreseeability, it is a way to set a limit on liability for damages or injuries that are tenuously related to the negligent act. The primary and most direct cause for an injury or damages is usually known as the proximate cause. Proving proximate cause can be difficult because it does not have to be the first event to take place.




What is an intervening cause?


An intervening cause, or intervening act, is one that breaks the chain of causation. When the defendant has carried out their negligent act, and then another, unrelatedevent occurs afterwards and intervenes to be the primary cause to a person’s injuries, it is an intervening cause.

For example, if a negligent person (person A) leaves their keys in their unlocked vehicle in their driveway. But, a second negligent person (person B) trespasses on to the property, steals the vehicle, and gets in a car accident. Person B’s subsequent criminal and negligent actions are said to be an intervening cause, and Person A cannot be held responsible.

Stated another way, an intervening cause can shield the original negligent person (person A) from legal liability.




What is negligence per se?


Negligence per se is when a person violates a statute or regulation designed for the safety of other individuals. If someone is injured as a result of a violation of a safety statute, the negligent individual is legally recognized as being “per se” negligent and no further proof need be shown. In other words, it is not necessary to question whether a reasonable person would have acted in the same manner under the circumstances.




What is comparative negligence?


Comparative negligence applies when both individuals acted negligently and share responsibility for one of the individual's injuries. The jury must allocate fault in proportion to each individual's negligence - or responsibility - for causing the injury. If the injured person's negligence is found to be 51% or more at-fault, he is not entitled to any recovery in Georgia. As an example, one individual (person A) is inebriated in a bar or restaurant when he slips and falls due to plastic trash on the floor. It is proven through surveillance footage that the plastic trash had been ignored by several restaurant employees for nearly an hour, and it presented a fall risk. But, the plastic trash was clearly visible as dozens of other employees and patrons were able to avoid it. A jury could find that person A is 51% or more at-fault because he was inebriated and should have seen the plastic trash, but for his impairment. In that case, person A can not recover any compensation for his injuries due to his comparative fault exceeding 51%. Using the same example, let's say person A is found to be 33.33% at fault, and the restaurant is found to be 66.66% at fault. In that case, person A can only recover compensation, or damages, in proportion to the restaurant's fault. So, if person A has $10,000 in damages, he would only be entitled to recover $6,666.66 from the restaurant, due to his comparative negligence.





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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Legal work will be performed and files will be kept at the firm's office.