Well, here you are. We have attempted to negotiate a fair settlement of your personal injury case with the insurance adjuster. Their first offer was nothing short of insulting, and the subsequent offers have left you feeling like you are arguing with a signpost.
FILING THE COMPLAINT (Lawsuit)
So, the only realistic option left is to file suit in your case. The paper that gets things going when you file a lawsuit is formally known as a Complaint. The party that brings the lawsuit and files the Complaint is known as the plaintiff. The party that caused the harm to you and your family is the defendant. The Complaint simply sets forth who you are, what has happened to you, who the defendants are, what the defendants did wrong to harm you, and a request that they be held responsible for all the harms and losses they have caused.
The lawsuit is filed at the courthouse in the county where the wreck occurred (or where the defendant lives). What happens next?
First, just because a lawsuit has been filed does not mean your case is going to be tried in a courtroom. As a matter of fact, over 97.3% (to be exact) of my cases settle after we had to file a lawsuit. The act of (properly) filing a lawsuit does 2 things…
- It tolls (or stops) the Statute of Limitations (SOL) from expiring, and
- It forces the insurance company to take action.
Tolling the statute of limitations is important because the SOL is very short in Tennessee as compared to other states. It is one year from the date your injury occurred. This means that if you do not file your lawsuit within one year against the proper parties, then you are truly SOL (S&*$ Outta Luck).
There are exceptions to this short SOL, including minor children, whose SOL does not begin to run uintil their 18th birthday, and therefore expires or terminates on their 19th birthday. There may be other exceptions, depending upon the facts in your specific case. Regardless, it is seldom wise to wait more than one year to file a Complaint in your injury claim.
Nowadays, it is very common for insurance companies to “lowball” you when negotiating your case. Especially in soft tissue injuries (i.e. whiplash injuries). I occasionally get these offers and have learned the truism that “no good deed goes unpunished” when trying to be cooperative and friendly with the insurance company. Trying to work with the insurance adjuster and hoping they “come around” can be a complete and utter waste of time. I have also learned that I detest begging an insurance company for money, and refuse to do it. I have found that the best response to a ridiculous offer is to not respond to the adjuster, and simply go ahead and file a Complaint. We force the insurance company to ACT. Otherwise, you are wasting valuable and precious time.
I often say that “Time is a plaintiff’s enemy.” Plaintiffs and witnesses can die, their memories will fade, witnesses can move and disappear, video tapes/security footage is destroyed, pictures disappear, or the plaintiff can be involved in a new trauma of some sort that overrides their injuries in the wreck, and gives the insurance company an “out.”
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Waiting until the end of the one year SOL is dangerous. It terrifies me to wait that long. No one can convince me there is any benefit to waiting almost 12 months to file your lawsuit in Tennessee. You may not know when you first file your Complaint that the defendant was in the course of their employment for a corporation at the time they ran a red light while texting and t-boned your wife or daughter. This may seem like no big deal to you right now, until you find out the defendant was driving her personal car that only had the state minimum $25,000 worth of coverage, yet your daughters ER bill is $27,000 alone. These facts are from a case I am working right now, and thankfully, we filed early and took her deposition before the one year SOL period. We were able to amend, or re-file the Complaint and add her pharmaceutical company to the Complaint as an additional defendant within the one year SOL. Although we may be able to do this after the one year when we first discover it, it might be difficult, sometimes impossible to do. I will say it once more, waiting until the last minute to file is risky, needless, often laziness on the part of the lawyer, and dangerous.
What if Your Injuries are so Serious That You Likely Will not be Done Treating in One Year After Your Wreck?
What benefit do you have in delaying the normal litigation time limits and then running them after the one year time period by filing towards the end of the one year statute of limitations? It makes no sense to do that. If I have a surgical case that occurred in Tennessee, I am filing suit very quickly in that case. If my client will not reach maximum medical improvement within one year, then I will have to file a Complaint in that case regardless. It just makes sense to run the normal time delays built into the Rules of Civil Procedure that govern lawsuits and have that time run concurrently with your care and rehabilitation instead of consecutively after you are done treating. There may be some exceptions to this general rule, but in most catastrophic (or surgical) cases, I am filing a Complaint immediately and putting the insurance company "on the clock."
What Amount Should I Sue For In My Lawsuit?
And while we are on the topic of filing a lawsuit, let’s talk about the number that is “sued for” in the complaint. The legal term referring to the amount you are asking for is called the "ad damnum." This amount stated in your Complaint in Tennessee doesn’t mean a whole lot to insurance companies, but can mean a lot to you. I hate putting numbers in Complaints (lawsuits) because they can be used against you by the insurance companies. Here is the fact that you most certainly do not know.
The number listed in the Complaint is the absolute maximum you can receive in your case. Let’s say you have a case with medical bills of $10K and you think it is worth somewhere between $30-$50K total for all the harms and losses combined. So you and your lawyer (in this hypothetical) decide to list $30,000 in the amount to be sued for in your Complaint. Then you go to trial, and the defendant is an ass, and so is the defense lawyer. You are very credible and your witnesses are stellar, and the jury provides a verdict for the sum of $96,000. Guess what? You can only collect $30,000. The reason? As I stated above, the amount that is listed in your complaint is the absolute maximum you can recover in your case. Arguably, your lawyer has just committed malpractice by doing such a great job for you, but only listing $30K in your Complaint. Think of it from your lawyer’s perspective for just a moment. Why in the world would you list a lower number in your Complaint that you likely have a chance of beating at trial? You would be punished for it later, right? You just left money on the table simply because you chose to type “30,000” instead of “$96,000” But you don’t have a crystal ball and you can’t predict which way a jury is going to go, so what do you do? You list a high number. And that number is higher than you EVER expect to get at trial. Any lawyer who tells you otherwise is lying to you. Why not list a “Giga Billion” dollars in the Complaint just to be safe? As long as the number is higher than what you get a trial, you are safe.
This ad damnum law is a silly law that remains in Tennessee jurisprudence. I typically don’t list a number in my Complaints. Then the defense lawyers hired to fight me throw a fit and say to the judge, “Your Honor, Mr. Griffith has refused to put a monetary amount in his client’s Complaint, and we are entitled to force him to put a number in it … (and here is the kicker, the big lie…. ) so that we can let our insurance companies know what their exposure might be.” This is another big fat insurance company lie. The real reason? They want to get in front of the jury if the case later goes to trial and say, “Ladies and Gentleman, the plaintiff in this case has only $10K in medical bills, yet has sued my client for $500,000 dollars! {How Greedy the plaintiff is!} "
Now you know. Don’t buy into the hype. I enjoy listening to conservative talk shows often while driving and I am amazed at the number of times people call into the Phil Valentine and Ralph Bristol shows and talk about someone getting injured somehow and then “turning around and suing for a million bucks” … to be followed with descriptive terms of "jackpot justice" and "lack of personal responsiblity" and then go on to demean lawyers, and taking the bait with a full gulp. Sometimes I get the impression they think all lawsuits are frivolous, when in actuality the lawsuits are spurred on by frivolous insurance defenses, and lack of accountability by the insurance companies. Insurance defense lawyers love this ruse and get a chuckle out of it. And when we (plaintiff lawyers) try to change the law to not require us to put an ad damnum in the Complaint, guess who staunchly opposes it? The insurance lobbyists and the defense lawyers. Learn more about determining the value of a personal injury case.
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SERVICE OF THE COMPLAINT
So the statute is tolled, or stopped, with the filing of a complaint and summons in the proper court. The next step? The actual defendant who caused your harms and losses, and who is being sued, has to formally receive by hand delivery, or by certified mail (with some exceptions) a copy of the filed Complaint and Summons. This can be done by delivery of same by the local county sheriff’s deputy who goes to a person’s home, or a place of business, and hand delivers a copy to the individual person. The Deputy then marks on the back of a copy that he has that he served so-and-so on the 5th day of June, or whatever the date was, and then returns the “executed” summons back to the court clerk’s office, who notes the date of service by that officer. The date of service is very important, and can sometimes be weeks or months after the filing of the lawsuit. Why? Well, what if the defendant is evading service? What if they see the officer coming and they hide in their closet and tell everyone to be quiet and don’t answer the door? The officer may come back later, but the same thing may happen. Delays in service are common and the process really does not put any deadlines on the defendant until they are served personally. There are exceptions to these general rules of course. I am not addressing every scenario, only the most common ones.
This is the reason that in every one of my cases I use a private investigator/private process server. This can be a little pricey, but well worth it for several reasons. First, my PI (Roger Clemons) can find anyone. He has found people that the police can’t even find. He once found a guy running from me who was living in a trailer in Ypsilanti Michigan, who did not have any service in his name, and was living in a mobile fifth wheel trailer. He still won’t tell me how he pulled that one off. He is good, and I trust him.
The other good reason that I use a PI instead of the police is that I know immediately when a defendant is served. I want to get the jump on the insurance company and their lawyers. That defendant has 30 days to file an Answer to the Complaint, and 30 days (sometimes 45) to file answers to written questions called “Interrogatories.” My office is trained to send interrogatories immediately upon learning our PI has served a defendant. When the defense lawyers get my cases, they are usually already behind and asking for extensions of time so they can file answers to the Complaint and to the discovery I have already sent their clients. I have seen so many so-called “trial lawyers” who have filed complaints and then done absolutely nothing, and certainly nothing offensively and pro-active. They have answered written interrogatories and allowed the defense to take depositions of their plaintiffs, but have done nothing to attack the defendant. Many times they are in the midst of scheduling order deadlines and are on their heels. Plaintiffs don’t do well when they are on their heels.
What about “suing the insurance company”? Well, here is another fact you probably thought you knew but you were dead wrong. In a typical car wreck/ tractor trailer truck wreck, you don’t sue the insurance company. Even though the whole case has insurance all over it in every facet of it, there is no mention to a jury that there is liability insurance. You cannot list the insurance company on your complaint as a defendant. The defendant gets a free lawyer with every dime of their high hourly fees paid for by the insurance company. Every penny in (almost) every single case is paid for 100% by the insurance company. And here you have the defendant sitting there in court with their insurance lawyer, and the defendant is looking all poor and pitiful and some on the jury may feel sorry for them, and some jurors may worry about hurting this lady’s pocketbook when it is all a (another) big lie.
Jurors in Tennessee are never told there is an insurance policy covering the defendant. Yet there it is, all over the courtroom and has stunk up the path to the courtroom, and jurors never know it. Oh… they suspect it, for sure. But there is a specific instruction that instructs them to “not consider” whether there is insurance covering the defendant, or not. But in every case I have ever tried (and I have tried a lot) insurance is there. IN EVERY SINGLE CASE.
Think about going to trial from the plaintiff’s perspective. You can’t get blood out of a turnip. If a defendant does not have insurance, he is likely penniless and judgment proof. It takes a lot of money to get a case to trial. Depositions cost money to the plaintiff. Doctors’ depositions cost a lot more. It is simply not worth it to go to trial to get a judgment against a poor person who has no insurance. It’s no good for the plaintiff, and it is a waste of judicial resources most times. Yet, people on juries are swayed into the false thinking there is no insurance available many times, and the defense lawyers love it. Why? They want your sympathy. And they want you to use that sympathy to send the plaintiff out of that courtroom on their ear without a dime being paid to the plaintiff. Some of you may think that is funny. Wait until it happens to you.
So, now you know. If you are ever a juror in a civil trial involving money damages, there is almost a 100% chance there is insurance all over that courtroom, lots of it, and the defendant will never have to pay a penny for anything that is related to the case. Nothing. That’s part of the insurance policy. You get a lawyer paid for by the insurance company to represent you, and it costs you nothing. Insurance pays it all.
The Defendant’s ANSWER to the Complaint
Once received, the defense lawyer reviews that Complaint and the numbered paragraphs that contain allegations against the defendant. The defendant can either admit, deny, or claim they do not have enough information to each numbered paragraph in the Complaint. For example, determining who is at fault, or “liability”, is usually a key issue in most car wreck cases. For whatever reason, it is not in a defense lawyer’s blood to ever admit fault for anything. Even in clear rear end cases. You will be surprised to learn (and I want you to test me on this) when you have to file a lawsuit in your case that the defense will make up some of the most frivolous defenses. They will talk with their defendant, and they will either a– not listen to them admit fault, or b– will talk them into buying into a frivolous defense. Then, the defense lawyer will file the answer on behalf of their insured/client DENYING ALL LIABILITY for the defendant who caused the wreck. You don’t believe me? I can tell you I read every answer that comes across my desk in my files and it happens about 95% of the time. Do you ever hear talk about frivolous lawsuits? What you don’t hear much about is the much more prevalent fact of “frivolous defenses” by the insurance company defense lawyers. Many times, I show these frivolous defenses to my clients and it makes them very frustrated and angry that the defense lawyer is now blaming them. I calmly assure them that it is all okay, and to consider this a “gift” by the insurance company. I have learned in my trials that jurors despise people who refuse to take responsibility. Not only do they act careless and hurt people, but they turn around and blame the very people they should be helping.
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INTERROGATORIES and REQUESTS FOR PRODUCTION OF DOCUMENTS
This sounds kind of scary doesn’t it? Well, this is just fancy lawyer speak for written questions asking for information and for papers to back up your claims. That’s all. Don’t let it scare you. Your lawyer will help you answer these, and nothing will be sent to the other side without a full review of your answers.
In the timeline of your lawsuit, this is the next step after service of the Complaint and Summons. These can be sent out at nearly any time but once sent, the opposing party has 30 days to answer them. Typically, this takes longer than 30 days and both sides will allow the opposing party to have a little more time as long as it is a reasonable period. I HATE being behind on my interrogatory responses and it is a big deal at my office. But I cannot answer these questions and provide this information without my client’s (your) help, so sometimes there are delays in getting all of the information.
So you can see that, at this point on our timeline, there are two delay periods already, the time to get the defendant served, and the time to answer the initial questions sent by the defense lawyer. Don’t worry, while you are working on your questions to answer with my help, the defense is working on answers to my questions I have sent to the defendant. Theirs are usually a little bit easier to answer than yours are though. I don’t necessarily need their tax returns, or their medical history, etc. I just want to know why they are attacking you in their defense.
Interrogatories are sworn testimony. It is important that you be 100% truthful with your responses. Anyone can be a halfway decent defense lawyer, especially when a plaintiff lies or exaggerates the truth. I have learned over my years of trying cases that a defendant can lie and get away with it, because a juror can relate to a defendant getting sued and perhaps feel sorry for them. A plaintiff must always tell the truth, even when it hurts. Especially when it hurts.
DEPOSITIONS
Now we are getting to the crucial part of your case. How you are prepared, and how you perform in your deposition is crucial.
But first, what is a deposition, and how is it used? A deposition is merely answers to questions that you provide to questioning under oath. Your testimony is recorded usually by a court reporter. Sometimes depositions are recorded by video as well. Depositions can be used in court as trial testimony, and/or to impeach a witness (catching them in a lie.) Depositions are usually taken of the parties (you and the defendant) first, then witnesses, then experts. The rules do not state which order that depositions can be taken, or which party goes first, but that is the usual and customary order that depositions are taken.
In a typical car wreck case, the first depositions are taken after written interrogatories and requests for production of documents have been exchanged between the parties. In a perfect world, I would like to take the deposition of my client’s treating doctor first, but the insurance lawyers go crazy when I attempt to do this. Remember, their main goal is to try and catch you in a lie or exaggeration. If they can’t do that, then they will try to infer that you are lying to your doctor, such as not telling them everything about your prior medical history. They need you to be deposed first so that you won’t know at that point what your doctor is going to say during his deposition later.
Before your deposition, it is crucial to your case that your lawyer prepare you for the questions you will be asked. There are usually 5 categories of questions that are typically asked of you by the insurance lawyers in a car wreck case.
- First, you will be asked about your general background information, i.e. where you are from, family, illnesses, medications.
- Next, you will certainly be asked about all of your responses to the Interrogatories and Requests for Production of Documents.
- Third, you will be asked about your entire medical history from birth to the time of this wreck you were involved in with their insured, including all prior car wrecks, incidents, emergency room visits, and family doctor information.
- Fourth, you will be asked about the facts of the wreck that you were involved in with their insured. Even though you think fault is very clear and not disputed, you had better be careful, and be prepared for these questions. I have seen and read depositions before where the plaintiff was not properly prepared for the onslaught of defense lawyer questions and have seen the defense lawyer get his foot in the door in a valid defense against liability. This will always be asked of you in a typical car wreck deposition and you must be prepared.
You should re-read the police report and be very familiar with it. You should have a copy of any statements you gave to the liability adjuster (if you did give a statement to them, that is, which you should NEVER do). You should read the answers to the defendant’s interrogatories where they explain in their own words how the wreck occurred, which in many times they do everything they can to avoid accepting fault for the wreck they caused.
You will next be asked about every bit of your treatment that you have had since the moment of this wreck. The defense lawyers ask these questions like they don’t know the answers. But they do. At this point in litigation, the insurance defense lawyer knows your medical history better than you do. These insurance companies have banded together, all of them, and they track all claims that are made through what is known as the “Index System”. By obtaining your social security number, they automatically know every single time your name has been entered into any insurance claim. This includes prior claims you may have even forgotten about. They attempt to use this against you by asking you if you told the doctor after the wreck you have just been involved in with their insured, about every prior injury you had, or any prior neck injuries, et cetera. If you didn’t remember at the time you first saw your doctor, or if you weren’t asked this question by your current treating doctor, the defense lawyer will try to create an issue where they will infer that you were being dishonest with your doctor once you met with him and failed to tell him about injuries he never asked about, even if they were totally healed and happened 25 years ago. It is therefore very important that you review the emergency room record and specific details about what your specific complaints of pain were when you first presented to the ER. Just like when you work out hard and you usually hurt the worst on day 2 or 3, victims of car wrecks usually do not feel all pains when they first go to the ER. They then have subsequent and perhaps worse injuries which reveal themselves on day 2 or 5 post wreck. Yet as time goes on, people think they told the ER doctor all of their injuries during that first visit, when they actually did not. I can’t remember what I had for breakfast 3 days ago. You won’t be extremely clear on what exactly you told the ER doctor. This is one of their nastiest tricks, so be prepared.
- Lastly, you will be asked about how this injury has affected your life since the wreck. It is important to be honest here, and don’t hold back while at the same time not exaggerating. It’s hard for people to talk about these things sometimes as we all don’t want to come across as whiners or complainers. This is where a good lawyer will have asked you about “Your People”. “Your People” are the people that know you extremely well. They can be family, but not necessarily so. They consist of at least 4-6 people who knew you before the wreck, as well as after, and can tell the story of the change they have seen in you. These are the most important witnesses in your case. They know your character, your work ethic, your honesty. Many lawyers make the mistake of not identifying these witnesses until just before trial. If you wait too long, you can’t use them. You need to get on this list early. I always give my clients a journal on day one of meeting them and ask for a list of people that can tell others what changes they noted in your before your wreck vs. afterwards. Your lawyer needs to make sure that you do. This is crucial.
Most importantly, depositions are a time for the defense lawyer to evaluate you, and to report back to the insurance company. As soon as your deposition is over, that defense lawyer is going to go back to their office and dictate a long report about all that was discussed and how you responded, and what points of friction they were able to create against you. I always tell my clients that, while this system is certainly adversarial, they need to be very respectful to the insurance defense lawyer. You can answer the questions truthfully and straightforwardly, but limit your responses to the questions that are asked. Do not ever volunteer information. If the defense lawyer does not ask the right questions, that is on them. But at the end of the day, if you have been surly, or have evaded their questions, been overly defensive, or just downright ugly to the defense lawyer, that will not bode well for you when it comes time to try and get another chance at settling your case. They are not going to fear you that much if they don’t think you will make a good witness in front of a jury. However, if you come across respectful, polite, and warm, then they will report back to their insurance adjuster that is calling the shots that perhaps they need to take your case a bit more seriously and increase the offers.
DOCTOR’S DEPOSITIONS
Doctors are immune from subpoena to come to trial. If a doctor will not willingly come to trial, then th
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