What's Taking So Long-Where IS My Money Already?

What's Taking So Long--Where IS My Money Already?

DIY--I can figure this out!

Gavel_iStock_000015518511XSmall1Many people assume that if they get into a car accident or slip or trip on a hole in a parking lot that receiving compensation for their injuries and bills incurred should be quick and easy.

Unfortunately, while this should be the case, often these days it is anything but.

You tried to do it yourself and picked up the phone, perhaps faxed in some papers, and figured the responsible party's insurance carrier would just send you a check. the adjuster on the other end of the phone often even sounds helpful and pleasant. It can't be very hard to do this, can it? But then days turn into months, and requests for more and more "documentation" become fishing expeditions designed to make frustrate you or calls go unreturned completely.

Maybe it isn't all that easy as you originally presumed. In an era where we are told that there is a solution to nearly every problem posted on YouTube, there is still no way to completely explain the "how to" of a lawsuit or insurance claim. Much as replacing a toilet or doing your own taxes is not for everyone, there are some things, like lawsuits and insurance claims, best handled by the experts.

Okay, so explain why I can't do it myself.

Just why is this the governing truth?

As usual, the answer can be at explained, at least in part, by following the maxim of "follow the money." Insurance companies make money by investing the money they have and earning interest, as well as making other investments. Over the years most of them have figured out it behooves them to contest claims and legal cases as long as possible. In short, the longer it takes to resolve a claim, the better it is for them.

Most insurance companies identify the approximate value of a case early on and set aside reserves in an amount approximately that of the estimated case value. So, if they figure a case might be worth $5,000.00 in 2004 and settle it in 2005, they've held onto their money a year and earned a year of interest.

If they make you file a lawsuit and fight the case for 4 years, they will have 4 years worth of interest on that $5,000.00 in reserves, minus what they spend to defend the case. Basically, the value of the case (the damages and the injuries, the pain and suffering etc.) generally do not change if the case was evaluated properly in the first place. Also, keep in mind that most insurers have "in-house" law firms that handle all their claims and lawsuits on a discounted basis. Young lawyers who want trial experience will definitely get it at many of these firms, where the motto is to defend, delay, and deny negligence, question everything, and throw as many procedural roadblocks at the plaintiff possible. Often, because much of the cases (auto cases primarily) are similar, these firms are able to gain the benefits of economies of scale with relatively few inexpensive lawyers handling many files efficiently.

Fine, I gave up and hired a lawyer and it's STILL taking forever. Why?

Knowing this, you probably are wondering why a lawsuit does take so long. Let's suppose you gave up trying to handle your claim yourself or hired a lawyer early on. You probably met with him or her and signed a few papers. Now, it's been months since then and you have no idea why you haven't seen any money yet.

Obviously, if you're a lawyer, it's easy to understand what is happening and what the process involves. But if you are not, it can be a bewildering and confusing time where seemingly "nothing happens."

Start with the basics of what happens once a lawsuit is filed. Think of it like some of us old enough to remember the ditty, "I'm Just a Bill On Capital Hill..." That song, accompanied by a cute little cartoon, explained the process of how a bill becomes a law to many of us. Unfortunately, even law schools don't really provide a catchy way of explaining what happens when a lawsuit is filed.

The first thing that happens is a lawsuit is filed with the Clerk of the Circuit Court for the county that has jurisdiction or in Federal Court if the situation warrants it. Basically, a lawsuit can be filed where an incident occurred, or where the plaintiff resides, or where the defendant resides. Or, it can get even more complicated with multiple parties. Either way, there can often be more than one proper venue. Federal courts required a specific amount in controversy and parties with "diversity," which generally means they are from different states. Without getting too technical, just figuring out where to file a case that is most advantageous to the plaintiff is not quite as simple as you may have imagined.

I hired my lawyer weeks ago, why isn't the case filed yet?

While cases on television lawyer shows seemingly are initiated, filed, and tried in a one hour episode, which seems to track a few days or a week, in the real world this is a much more drawn out process, complete with much more tedium, less attractive people, uglier offices, and far fewer "gotcha" moments.

First, the lawyer has to gather all the facts, perform some investigation into the matter, and determine who the correct parties are and under what theory or theories the lawsuit will be brought. This may involve some things as simple as obtaining a police report for the auto collision that occurred or it can involve far more detailed digging, complete with hiring professional investigators, consultation with experts, or even hiring of experts to review records. In medical malpractice cases in Illinois, in fact, it is required that an affidavit of a physician be obtained and filed attesting that he or she has reviewed all of the medical records and that he or she holds the opinion that the standard of care.

Oh, and a good lawyer will research the applicable law before drafting the complaint so that the theories of recovery posited fit with the current law.

In short, just to get the case filed, it takes awhile. Especially when you realize that the typical lawyer, no matter how large a staff he or she has, and no matter how efficient his or her office is, cannot devote 100% of his or her time just to your case. Drafting a good complaint takes some time.

Case is filed so now what?

So, the complaint gets drafted, the summons(es) are prepared, and the checks for the filing fees are signed. Now, isn't it just as simple as sending a law clerk to the courthouse to file the case?

In some cases, yes.

The case gets filed, either in person, or electronically, depending upon the venue. Once that is done, the Sheriff is provided with the papers so that all defendants can be served with process. If there is only one defendant, this could be a one-shot deal where the sheriff's deputy knocks on the door and hands the lawsuit to the defendant. But if there are multiple defendants in many different counties or states, it can be complex. The more defendants, the longer it can take to obtain service.

Without service, you are not "at issue."

Once a defendant is served, he or she (and if it's a corporation, they are seen as "persons" under the law) has a specific amount of time, generally thirty (30) days, in which to file an appearance and either an answer to the complaint or a motion.

Skilled defense attorneys can "drag out" a case before it even gets to the "at issue" stage by filing motions to force the plaintiff to file a more specific complaint, dismiss certain allegations or counts, or even dismiss some defendants. Most of the time this means months and months of delay, as motions are responded to, replied to, and ultimately argued before the assigned judge.

Once all these motions are ruled upon, and any "deficiencies" are amended, the defendant must then file an answer to the complaint. At this point, you are finally "at issue."

"At issue"... what next, Batman?

Well, not so fast!

Sometimes defense attorneys will file defensive actions to which the plaintiff must respond, such as affirmative defenses ("plaintiff should've been watching where he was going, didn't have the right of way..."), or counterclaims, which are actually complaints for damages against the plaintiff ("sure the 2 cars collided but it was actually YOUR fault and we are seeking damages from YOU").

Discovery...of what?

Once all that is out of the way, typically cases enter the discovery stage.

Generally, there are two main types of discovery, written and oral.

Written discovery is comprised of a series of (usually) court-sanctioned questions and requests for documentation. Both sides, plaintiff and defense, will issue these requests to each other, which require sworn and detailed responses. This is a time consuming, tedious, and important stage, as many of the responses CAN AND WILL be used against parties if they change their testimony at a later date.

Discovery is broad and can be used to ferret out detailed histories of personal, employment, physical, mental, and financial issues. Because our legal system is an adversarial process, it means both sides try to push as hard as they can to gain any advantage.

Also, as many cases nowadays involve expert and opinion testimony, all experts and witnesses providing opinions at trial must be disclosed in writing and all of their opinions to be offered must also be disclosed in exacting detail. Experts and their opinions will be excluded from trial and the case lost due to failure to abide by these rules.

Once these are answered, the next stage is the second type of discovery, which is oral discovery.

Many of us have heard of depositions but what exactly is a deposition? Simply, it is a sworn series of questions and answers.

Think of it as a conversation with a lawyer for all each party and a court reporter taking down everything a witness says. A skilled lawyer can make or break a case by taking a good deposition, often turning a great case into a lost cause or making a witness sound less reliable than a three dollar bill. These are high stakes, often even more important than the written discovery.

Since most depositions take hours to complete, plus time to review witnesses prior to them, defense attorneys, on behalf of the insured people they defend, often use depositions as a way to eat up time, wear down their opponents, or find weaknesses in the case.

In short, since in many types of cases, such as personal injury, medical malpractice, and products liability, the plaintiff's attorney does not get paid unless he or she obtains a settlement or verdict, and the defense attorneys generally get paid a fixed rate for their work, it is to the defendant's advantage to prolong this process.

Certainly, plaintiff's attorneys can take artful depositions of defendants or defense experts in which they blow away any hope the defense has to posit their theory of the case but it still takes time and money to do this. Court reporters must be paid, and, in the case of experts, fees must be paid to witnesses. Since the party taking a deposition generally pays the court reporter, this cost can add up. Worse, if a defense lawyer takes the deposition of the plaintiff's expert, the plaintiff's lawyer must pay the expert's fee to prepare for and attend the deposition. Yet another cost of high stakes litigation.

Discovery is finished so that means I should get my money, right?

Well, not so fast.

Sometimes, specific motions can be filed after discovery is completed. Summary judgment motions are common. Generally, they state that after all the facts and law are taken into account, there is no good faith issue and the side bringing the motion should win.

Even if the party opposing the motion survives, it still eats up more time and resources, sometimes even requiring additional discovery or depositions to defend properly.

Why isn't the judge making this go faster?

All along, the case has been monitored closely by a judge for discovery compliance and other issues that come about. The judge is doing everything he or she can to make the case move forward and push the parties into doing what they are supposed to do.

But, there are many creative ways to drag one's feet, delay the process, and frustrate prompt resolution. Crafty lawyers are paid well to do just that.

My day in court!

Ultimately, if the case hasn't settled by now, you will eventually get a trial date. Depending upon the venue, these can be firm and written in stone while other times they can be flexible and easily pushed further in the future.

Either way, getting prepared for trial is an enormous undertaking for all parties.

Insurance companies and their lawyers know this.

The more work they can make your lawyer do, the more worn out he or she will be.

Also, if a trial is going ahead, witnesses must be subpoenaed and advised they must appear. In the case of doctors or experts, they often command large sums of money up front to appear. It is all a calculated gamble on the part of a plaintiff's attorney if he or she does not get the "ducks in a row" before trial. In short, to prepare a case for trial is exhausting and expensive. Again, the insurers know this. That's why they may make your lawyer do it!

Do I get my money now?

Your case went to trial and you got a verdict in your favor or you settled right before trial. Congratulations.

But don't think the same insurance company that took years to get to this stage is in a hurry to issue the check.

They will often create hurdles for your lawyer which take up time and delay your recovery.

Post-trial motions or appeals can take up months, if not years.

Checks may include lienholders, such as Medicare, that cannot be removed easily.

Even without these, your lawyer likely must negotiate liens from physicians, health care providers, and the like to maximize your take.

Overall, it's a long and drawn out process.

Litigation is time consuming and expensive. It's also stressful. That's one reason why you need someone you trust representing you from the very beginning.

And that way, you WILL get your money!

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