Car Accident Lawyer in Richardson Explains Texas Wrongful Death

Car Accident Lawyer in Richardson Explains Texas Wrongful Death | Zach Herbert

Car Accident Lawyer in Richardson Zach Herbert explains what you need to know about car wrecks and wrongful death. The unexpected, avoidable loss of a loved one is nothing short of tragic. The personal injury law firm of Herbert & Eberstein in Richardson, Texas explains how to know if you might be entitled to financial recovery through a wrongful death claim.

No matter what the circumstances, there are few things in life more devastating than the loss of someone you love. In cases where a loved one has passed away unexpectedly due to the harm or negligence of another person, such as a fatal car accident, coping with their death is often even more difficult. Not only is the family dealing with their grief, but they may also have been put in a place of financial vulnerability. In cases like these, it may be possible to file a wrongful death claim that will help ease their financial burden.

What Is Wrongful Death?

The family of a loved one who has passed unexpectedly, might feel a sense of injustice and wrongdoing but associate it with a normal part of the grieving process. Examples of this type of wrongdoing might be the case of a surgeon making a fatal error or an exhausted truck driver causing the death of their loved one. For families that find themselves in a situation like these or similar, it’s important that we answer the question of “what is wrongful death?”

According to Texas Statute, wrongful death is death that occurs due to the neglect, wrongful act, lack of skill, carelessness or default of another person. We tend to associate wrongful death with acts that occur in a hospital, but the law actually applies to an avoidable death in any situation that was the fault of someone else – for instance, a distracted driver that kills a pedestrian in a car wreck or a company that sells contaminated pharmaceuticals.

To meet the criteria for wrongful death, the following must be proven:

  • The death that occurred was either in part or completely caused by the defendant
  • The death that occurred happened as a direct consequence of the defendant’s neglect, carelessness or intentional actions
  • The death that occurred has resulted in an emotional and financial effect on the family
  • The death resulted in a financial burden upon the deceased’s survivors – this applies whether or not the survivors have the financial means to recover from the financial impact of their loss

What You Need to Know About Filing a Wrongful Death Claim

When a loved one has passed away unexpectedly, the furthest thing from many people’s minds is pursuing legal action against those responsible. It’s natural to want to wait until the immediate grief passes and the recovery process has begun, but it’s also important to realize that the sooner you take action for filing a wrongful death claim, the quicker you can begin recovering financially from funeral cost, medical bills and loss of wages.

Only with few exceptions, the person filing a wrongful death claim has two years from the date of the deceased person’s death to do so. Two years might seem like a long time, but when you’re grieving the loss of a loved one after a car accident and learning how to adapt to a new normal, time can pass quickly. For this reason, the family is urged to consider filing a wrongful death claim sooner rather than later.

It’s also important to know that only certain people are allowed to file a wrongful death claim. This group includes the surviving spouse, adult or minor child, surviving parents or legal personal representative of the deceased person’s estate. Typically, it’s the closest surviving relative that files the claim. For example, the rights of a spouse to file a claim supersede those of the deceased’s adult children unless the survivors or court have agreed upon another representative of the estate.

Types of financial damages that can be recovered in a wrongful death suit include medical and funeral expenses associated with the death, lost wages, loss of earning capacity and financial compensation for emotional aspects, such as loss of companionship and emotional pain and suffering.

When to Contact a Car Accident Lawyer /  Personal Injury Attorney for Wrongful Death in Texas

The important first step for recovering financially from the devastating loss of a loved one is contacting a personal injury attorney for wrongful death in Texas.  Let experienced personal injury attorney Zach Herbert of Herbert & Eberstein guide you through the process of filing a wrongful death claim. While the emotional devastation of the loss of a loved one might be unavoidable, financial devastation doesn’t need to be. Contact our attorney Zach Herbert car accident lawyer in Richardson to discuss your case today.

 

Media Contact:

Attorney Zach Herbert – Dallas Car Wreck Lawyer 

(T): 214-414-3808

https://zachherbert.attorney/

 

Sources

  1. https://statutes.capitol.texas.gov/Docs/CP/htm/CP.71.htm
  2. https://www.nolo.com/legal-encyclopedia/wrongful-death-lawsuits-texas.html

Insurance 101 – Stowers Demand and What It Means for Car Accidents

Insurance 101 – Stowers Demand and What It Means for Car Accidents

Learn the amazing story behind a Stowers Demand, and its impact on insurance companies and victims of car accidents.

Insurance companies have a duty to act in their policy holders’ best interest.  They have a duty to accept reasonable settlement offers on behalf of the policy holder within policy limits where doing so would be in the policy holder’s best interest.  This responsibility is due to the unique nature of the contractual agency relationship between an insurance company and the policy holder. Within the insurance contract, insurance companies reserve right to defend any suit for damages on behalf of the policy holder.  Also, the policy holder may not admit liability or settle any case without the consent of the insurance company. Courts have found that insurance companies owe a duty of care and diligence to those that they insure. They are to act as “a man of ordinary care and prudence would exercise in the management of his own business.” But, it wasn’t always this way.

Mamie Bichon, Stowers, and American Indemnity Company

On January 23, 1920 at about 7:00 p.m., an G. A. Stowers Furniture Company (Stowers) delivery driver was traveling down Austin Street in Houston, TX when the truck collided with a wagon on the side of the road.  The crash made the delivery truck inoperable. The delivery driver did not stay by the truck or light up the area to warn oncoming traffic. Mamie was a drug store employee who had just ended her shift when she got into a Ford Coupe headed down the same street the Stowers delivery truck was stopped on.  Unable to see the delivery truck, her vehicle collided with the unlit and unmarked Stowers delivery vehicle and flipped. As a result, Mamie was severely injured.

Stowers had an insurance policy in the amount of $5,000 with American Indemnity Company.  The insurance company had the contractual right to defend any suit on behalf of Stowers for damages or loss; and, prevented Stowers from admitting liability or settling any suit without permission from the insurance company.

Prior to trial, Mamie offered to settle for an amount of $4,000, well below the policy limits of $5,000.  The insurance company refused to settle for anything less than $2,500. The case ended up in court where a jury awarded $12,207 in damages.  With interest, court costs, and fees tacked on, Stowers furniture ended up paying Mamie Bichon $14,107.15.

American Indemnity Company admitted that the offer to settle the case for $4,000 by Mamie was a good one and that it should have settled on behalf of Stowers.  American Indemnity Company’s position was that it had satisfied its contractual obligations to pay the limits of the policy and that it had no duty to settle the case, regardless of whether it was in their policy holders’ best interest.  They also stated that they had the contractual right to defend any suit on behalf of the policy holder, Stowers, regardless of whether or not settling would be to the benefit of the policy holder. Their position put Stowers at considerable risk and ultimately cost them an extra $10,000.  As a result, Stowers filed a claim against American Indemnity Company for the excess judgment.

The court found that the insurance company owed a duty of care and diligence to the insured to act as “a man of ordinary care and prudence would exercise in the management of his own business.” Mamie Bichon’s case was very significant at the time and permanently altered the relationship between insurance companies and their policy holders in Texas.  It continues to be significant today.

Stowers Demands In Practice

A Stowers demand is an agreement by the plaintiff in a lawsuit to settle a case within policy limits.  In practice, this can be less than actual damages. There are a variety of reasons that plaintiffs can offer to settle cases within policy limits rather than going to trial and seeking the full extent of possible damages.  Often, a defendant will not have money to pay a claim outside the insurance policy and seeking more money that does not exist is an effort in futility. Additionally, an insurance company ignores a Stowers demand at their own risk.  If they fail to settle within policy limits, then the insurance company is potentially liable for the full amount of damages adjudged at trial.

A Stowers demand requires that “(1) the claim against the insured is within the scope of coverage, (2) the demand is within the policy limits, and (3) the terms of the demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured’s potential exposure to an excess judgement.”  The claim must be covered by the insurance company, the demand must be within policy limits, and the duty to settle is triggered when it is reasonable that the insured could owe more than the insurance policy limits at trial.

Cases involving personal injury can be complicated.  It is not enough to establish who was at fault, damages must also be proved and are subject to a jury determination.  There are times in which you legitimately may be injured more than what the defendant can pay. A Stowers demand is something that should be carefully considered with your personal injury lawyer in the process of negotiation and litigation.  Personal injury attorney Zach Herbert, has the necessary skill and experience to assist you in every stage of litigation to get you the best results possible. Call the personal injury law firm of Herbert & Eberstein in Dallas today to discuss your case.

 

Media Contact:

Attorney Zach Herbert

(T): 214-414-3808

http://zachherbert.attorney

Source:

  1. G. A. Stowers Furniture Company v. American Indemnity Co., 15 S.W.2d 544, 548 (Tex. App. 1929).
  2. G. A. Stowers Furniture Company v. American Indemnity Co., 15 S.W.2d 544, 545-546 (Tex. App. 1929).
  3. Mid-Continent Insurance Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 776 (2007).

Pedestrian Accidents Are On the Rise, Are You At Risk?

Pedestrian Accidents Are On the Rise, Are You At Risk?

Fatalities from pedestrian accidents have been on the rise. Here is what you need to know to stay safe as a pedestrian on the roadways.

We often hear about the dangers of automobiles and most of us are well aware of ways to help ensure we stay safe on the road. Recent years have brought an increase in awareness of roadway safety, especially with the rise of campaigns that promote the dangers of texting while driving. Overall, the increase in awareness has been a good thing, as fatalities from automobile accidents have decreased. However, on the other side of this is a disturbing trend in the rate of fatalities from pedestrian accidents.

If you or a loved one has been involved in a pedestrian accident in Texas, you should discuss your case with an experienced Dallas personal injury lawyer like Attorney Zach Herbert of Herbert & Eberstein.

What’s Behind the Rise in Pedestrian Death Rates?

According to data from the National Highway Traffic Safety Association, the rate of pedestrian deaths has been on the rise over the last decade and a half, despite that fact that fatalities in automobile accidents have decreased.  During this same time period, vehicular safety technology designed to protect pedestrian traffic has advanced, leaving us with the burning question of what’s really behind the rise in pedestrian death rates?

There are multiple theories on this. Some say that despite campaigns by local law enforcement, drivers are still too distracted by their phones. They might maintain an awareness of other vehicular traffic but aren’t focused enough to react appropriately to pedestrian traffic. However, this is just one theory in a puzzle where none of the pieces really seem to fit.

For instance, there is another area of thought that claims SUVs are to blame for the increase in pedestrian accidents. The theory being that the driver of an SUV is elevated so far off the ground that it can be difficult for them to spot pedestrian traffic, especially children, in time to respond appropriately. Likewise, their size makes it more difficult for them to stop abruptly when needed.

These theories only begin to tap the surface of safety concerns for pedestrians. For instance, higher speed limits and roadways without a designated safe area for pedestrians are also thought to be contributing factors to the increase in accidents and fatalities, as have the poor infrastructure and condition of roadways in many areas across the United States.

What many people don’t realize is that you don’t have to be someone who frequently travels by foot to be at risk of becoming the victim in a pedestrian accident. Accidents that occur between vehicles and pedestrians happen every day on roadways, at crosswalks, in parking lots and even at bus stops. It’s important that we all have awareness of pedestrian safety, for the protection of our own wellbeing and that of others.

Who Is Most at Risk of a Pedestrian Accident?

Awareness is one of the best ways to prevent a pedestrian accident. Unfortunately, it’s often up to the pedestrian to respond proactively in protecting their safety on the road. That said, there are some factors that increase the risk of being involved in a pedestrian accident. These include:

  • Walking in urban or suburban areas where there is more traffic
  • Children who might not be able to accurately access oncoming traffic are at greater risk, although the risk for children peaks after age 13
  • Elderly people who walk slower are at a greater risk
  • Being on the roadways at dusk or when it is dark out
  • Being on a dark roadway while wearing dark colors
  • Being on the roadway while intoxicated
  • Walking in an area where there is no designated safe place for pedestrians
  • Walking in poorly lit areas or areas where damage to the road exists

When to Contact a Pedestrian Accident Personal Injury Attorney in Richardson

While pedestrians have the responsibility to follow the law and act safely on the road, motorists also have a responsibility to be aware and do what they can to prevent pedestrian accidents. If you’ve been involved in a pedestrian accident, it’s important that explore the possibility of recovering damages from your injuries. The best thing you can do is contact a pedestrian accident personal injury attorney in Richardson to review your case. A pedestrian accident can be devasting, but an experienced attorney can help guide you on the path to recovery.

 

Media Contact:

Attorney Zach Herbert

(T): 214-414-3808

https://zachherbert.attorney/

Sources

  1. https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812124

How to Keep Your Child Safe From School Bus Stop Accidents

How to Keep Your Child Safe From School Bus Stop Accidents

News of devastating school bus accidents hurts all of us. Here is what you can do to keep your children safe at school bus stops.

As parents, sending your children off to school in the morning is one of the most normal things in the world – or at least it should be. You’re trusting that the school, teachers and other members of the community will help to keep your child safe until they return home to your care. Unfortunately, over the past few months, a rise in school bus stop accidents has shown us just how vulnerable our children really are.

Many families across the United States depend on school buses to transport their children back and forth from school. With many of these families have limited or no other options, it’s important that we understand what we can do to help keep our children safe, even when other drivers on the road are acting carelessly. If the unimaginable happens and your child has been injured as the result of a school bus accident, let Dallas personal injury attorney Zach Herbert help you and your family understand the next steps of the legal process.

School Bus Statistics

Last fall, we saw a cluster of early morning school bus accidents that resulted in serious injury and fatalities. One of the most sobering details of these devastating accidents is that they happened throughout several states – Mississippi, Indiana, Pennsylvania and Florida. This fact clearly illustrates that school bus safety is an issue for the nation as a whole, which has caused most of us to look more seriously at school bus statistics and safety. (1)

The first thing to understand is that while one child injured at their school bus stop is too many, millions of school children leave for school and arrive home safely at their school bus stops every day. The most recent data on school bus accidents that we have access to is from 2017, and those statistics show us that fatalities related to school bus accidents, including passengers and pedestrians, decreased from the years before. Unfortunately, reported injuries in these types of accidents did rise. (2)

What has caught many of us off guard has been the nature of these most recent accidents. As parents, we might worry about our child being involved in a roadway accident while in transit, but these events occurred at school bus stops – a place where the risk of danger should be minimal.

Tips for School Bus Stop Safety

Of course, our communities need to be looking at why these accidents are happening in the first place and what we can do to prevent them from a public safety standpoint. Still, as a parent, there are certain things you can do to help ensure your child stays safe. You can start by implementing these eight tips for school bus stop safety.

  • Make sure that children arrive at the bus stop with time to spare. Kids that are in a hurry are more likely to act without thinking and may put themselves in danger.
  • Arrange for a parent or other guardian to supervise young children at bus stops. This supervision will help keep kids off the road and not engaging in dangerous behaviors.
  • Talk to the right officials about location safety. If the bus stop is in an area that puts children at greater risk of harm, talk to the transportation director or school about a safer location.
  • Crossing the road should always be done in front of the bus, never behind it. This distinction also allows the bus driver to give your child the go-ahead after they ensure there is no oncoming traffic.
  • Don’t assume oncoming traffic is going to stop. Make sure traffic has come to a complete stop before crossing.
  • If your child drops something in the road, tell them to not risk grabbing it. Have them ask the bus driver or a supervising adult for assistance. A driver is less likely to see a crouching or child bending over in the road.
  • Make sure the bus is stopped completely. Wait until the bus has come to a complete stop and the doors have opened before making movements toward the bus.
  • Tell children to move straight ahead when entering or exiting a bus. Drivers react to predictable movements and aren’t prepared for a child that might backtrack.

When You Need a Personal Injury Attorney Richardson, Texas

If your child has been injured as a result of a school bus stop accident, a personal injury attorney in Richardson, Texas at Herbert & Eberstein can help your family on the path to recovery. As a community, we need to show that we’re serious about protecting our children. An experienced personal injury lawyer can be the voice that gets you heard.

 

Media Contact:

Attorney Zach Herbert

(T): 214-414-3808

https://zachherbert.attorney/

 

Sources

  1. https://www.cbsnews.com/news/school-bus-stop-accidents-claim-lives-of-five-children-as-distracted-driving-rises/
  2. https://injuryfacts.nsc.org/motor-vehicle/road-users/school-bus/

What To Do If You’ve Been the Victim of a Devastating Dog Attack

What To Do If You’ve Been the Victim of a Devastating Dog Attack

An unexpected dog attack can be a physically and emotionally devastating experience. Here’s what you need to know about dog attacks and personal injury claims.

Most pet owners are conscientious people who take great care in protecting their animals, including minimizing any risk that their pet may become aggressive towards another person. Still, attacks from domesticated animals do happen with one of the most common forms of aggressive behavior from pets coming in the form of a dog attack.

It’s estimated that 4.7 million dog bites occur in the United States every year, and of those, 800,000 require medical attention. Of course, the first thing you need to do if you’ve been attacked by someone’s dog is seek medical attention, but what about the aftermath? The best way to determine if you can recover damages for medical bills, lost wages, or pain and suffering, is by speaking with a personal injury lawyer today.

Understanding Personal Injury Claims and Dog Attacks

If you’ve been injured by an animal, it’s important to understand the complexities of personal injury claims and dog attacks. Injuries and damages that have occurred due to violent pet attacks make up a large portion of homeowner insurance claims. When pressed, some insurance agencies will hand over damages for a dog attack with minimal opposition. However, it’s more common that you’ll run into an insurance provider that challenges your claim – and then there are dog attacks that aren’t covered under home owner’s insurance at all.

In cases where you’re receiving a lot of pushback, or the owner of the animal wasn’t insured to provide protection against your accident, it is then time to consider filing a personal injury claim to recover damages. In most cases, a victim of a dog attack has a strong likelihood of winning a personal injury case if they can establish one or more the following:

  • The attack was unprovoked
  • The attack happened on public property or in a place where you could assume a reasonable expectation to not be attacked by a person’s pet
  • The injuries from the attack resulted in medical treatment and possibly long term medical issues
  • The pet owner was in violation of local leash laws or other ordinances that regulate how animals are to be restrained
  • The dog has a previous history of aggressive behavior
  • The dog is a breed that is generally considered to be aggressive – for example, a rottweiler or pit bull terrier

What to Do After a Dog Attack

If you’ve found yourself the victim of a serious injury as the result of an attack by someone’s pet, it’s important that you know what to do after a dog attack. Being the victim of an attack is a traumatizing experience, but you want to make sure that you do everything you can to ensure you recover the damages that you are rightfully owed.

For example, while you might feel a great deal of anger toward the owner of the animal, it’s important that you not react aggressively towards them. Instead, first seek emergency medical treatment and then give yourself a little space to calmly assess the situation before considering making any contact with the owner.

Secondly, file a police report right away after receiving proper medical care. Do this regardless of how much the pet owner pleads with you not to. This step not only ensures that the incident is well documented, but it also puts a buffer of legal authority between you and the pet owner. You should also take pictures of your injury for further documentation in addition to any medical records.

If the attack occurred on someone’s property, contact their insurance providers to discuss filing a claim. However, you should not provide an actual statement of the accident to them. Instead, relay that you’re not interested in providing an oral account of the incident and that you need to know what documentation they’ll need for the claim so that you and your attorney can be properly prepared when you file.

Working With a Personal Injury Attorney for Dog Attacks

Finally, one of the most important things you can do to improve your chances of recovering financial damages is to contact a personal injury attorney for dog attacks. If you’ve been a victim of the aggressive behavior of someone’s pet, including a dog attack, take the first step in protecting yourself and your financial future by contacting a personal injury attorney in Dallas today.

 

Media Contact:

Attorney Zach Herbert

(T): 214-414-3808

https://zachherbert.attorney/

 

Sources

  1. https://www.caninejournal.com/dog-bite-statistics/

Winter Can Mean More Truck Accidents

Winter Can Mean More Truck Accidents

The winter months often mean more dangerous roads for everyone. If you drive on the highway, you might encounter a lot of semi-trucks. Even in parts of the country that don’t ordinarily see heavy snowfall, the roads can get icy and slick.

Worse, drivers in warmer climates aren’t always accustomed to driving in winter weather, and this can lead them to underestimate just how dangerous the roads can be. The National Highway Traffic Safety Administration (NHTSA) offers some guidelines for staying as safe as possible on the highway through the winter months. If you have been involved in any type of car wreck or truck accident in Texas,  it’s in your best interest to speak with a Dallas truck accident lawyer to protect your rights and review all of your legal options. 

Prepare Your Car for Winter

Even if you don’t live in an area that requires snow tires, it’s still important to get your car thoroughly checked out before the cooler weather hits. Take your vehicle to a mechanic and have them look it over, checking for fluids that need to be topped off, as well as tires that might need to be replaced. It’s also a good idea to get an oil change before bad weather sets in.

Your mechanic can also check to make sure all of your exterior lights are working and can replace any lights that have burned out. Ask your mechanic to check for leaks in your car’s cooling system, and make sure your vehicle has enough coolant before you drive. You should also ensure that you have enough windshield washer fluid in your car’s reservoir, as this can help you clear ice and snow from your windshield.  

Check for Recalls

Many people are unaware that cars are frequently subject to recalls. Auto manufacturers have an obligation to notify car owners when a part is defective or something needs to be serviced or replaced on a vehicle.

If you bought your car used, or you moved since you purchased your vehicle, you might not receive notification of recalls in the mail. This possibility is why it’s important to check the NHTSA website on a regular basis. You can find recall information for your specific vehicle. If your car has been recalled, the manufacturer must repair it at no cost to you.

Be Familiar with Your Vehicle

Are you driving a new car? Or is this winter the first time you’ve handled your car in the snow and ice? Maybe you moved, and you’re not used to driving in hazardous winter conditions.

Now is the time to familiarize yourself with your vehicle. Some experts suggest taking your car for a drive on back roads or a residential neighborhood with slower speed limits. If you do this when the first snow starts falling, you can learn how your car handles in the ice and snow without worrying about being on the highway or traveling at high speeds.

Be Prepared for Emergencies

You never know when you’ll need to stay in your vehicle until help arrives. This is why it’s important to stock your car with enough supplies and emergency equipment to keep you safe. The NHTSA suggests creating an emergency supply kit that contains a snow shovel, broom or ice scraper. You should also have some kind of abrasive material, such as cat litter, on hand in the event your car gets stuck in the snow and you need to create some friction for your tires.

Additionally, it’s a good idea to keep jumper cables, flares and a flashlight in your emergency kit. You should also include blankets and water, along with some snacks. Finally, make sure you have a cell phone charger and any medication you need to take on a regular basis.

If you get stuck on the side of the road in an emergency situation, the NHTSA says it’s important to stay with your vehicle and to avoid overexerting yourself. Instead of leaving your car, put flares or markers around it so other vehicles can see you. Doing this will also help the police or emergency workers find your vehicle.

It’s also important to avoid running your car for extended periods of time, as this can increase the danger of carbon monoxide poisoning. Instead, run your car sporadically if you need to keep warm, and crack your window to make sure you get enough fresh air.

Plan Your Route Ahead of Time

It’s also a good idea to know your route before you leave the house. You should never attempt to plan your route with a GPS as you drive, as this can lead to distractions that increase your risk of being involved in a car accident. Leave with enough time to reach your destination without rushing in winter weather. It’s better to be late than to be involved in a car accident.

The NHTSA also recommends letting other people know when you plan to arrive. This way they know you’re en route and can check in with you if they don’t hear from you at the time you’re supposed to reach your destination.   

If you or a loved one have been involved in a truck accident, call Attorney Zach Herbert at Herbert & Eberstein today.

 

Media Contact:

Attorney Zach Herbert

T: (214) 414-3808

https://zachherbert.attorney/

Follow Herbert & Eberstein on Facebook

 

Sources:

  1. https://www.nhtsa.gov/winter-driving-tips
  2. https://www.nhtsa.gov/recalls

What Happens Right Before Trial in a Personal Injury Case?

What Happens Right Before Trial in a Personal Injury Case?

This is the conclusion to an ongoing series where Attorney Zach Herbert outlines the phases of an average personal injury case.  Not every case will follow this exact outline, as each case is different. If you missed the last installment of the series you can visit it here. 

After going through the discovery process in your personal injury case, the next phase you should expect to begin is the Deposition phase. It’s important to work with an experienced personal injury attorney at Herbert & Eberstein, to protect your rights in the final phases of your case. 

Phase 9: Depositions

Depositions are sworn testimony that is recorded out of court.  This saves lots of time and helps the case settle. If depositions were not allowed, most cases would proceed to trial before settling.  Many different depositions can be conducted, for instance: witnesses to the personal injury incident, doctors that treated the Plaintiff, the Plaintiff herself, the Defendant, Experts that have been hired by either side, and so on.  Depositions, or “depos” for short, take place in an office, usually a conference room. The person being deposed sits next to a court reporter, who types everything that is said. The attorneys for both sides can ask questions, but the attorney that “noticed” the depo asks questions first.  “Noticing” a depo means sending an official document to all involved that notices all parties of the date and time and place of the depo.

In a car wreck, depos may include a Plaintiff and Defendant depo.  These are usually on the same day and often take place in the Plaintiff’s attorney’s office.  Most of the time you will meet with your attorney before the deposition so that he or she can prepare you for what to expect.  Depos can last as little as 30 minutes and as long as a few hours. The maximum amount of time a depo can take in Texas is 6 hours, although you will rarely see this happen.  Your attorney will give you an estimate of how long it will last.

The whole point of depos is to figure out how the trial will go.  This allows the parties to proceed to the next phase, which is Mediation.  

Phase 10: Mediation

Mediation is where most cases settle.  Even if your case doesn’t settle at mediation, it is still worth the time to go to mediation.  Mediation takes place at the mediator’s office, and the parties are kept in separate rooms. Mediations can take two hours, half a day, or a full day, depending on the complexity and size of a case.  Most car wreck cases take two hours.

At this point, depos have likely been taken, and the parties have a good idea of how the trial will go.  Your attorney will give you his or her estimate of the chances at trial and the risk associated with going to trial.  The mediator will come into your room and talk with you and your attorney about your case. The mediator is a neutral party, meaning he or she is not on either side.  The mediator wants to settle the case and will work hard to do so. This may mean he or she will try to get you to take less while trying to get the other side to offer more.  Wait for your attorney to give his or her advice before making a decision on your case.

If your case does not settle at mediation, then the next phase is the Trial phase.  However, remember that there are still many opportunities to settle your case before trial.

Phase 11: Trial

Trials in Texas happen almost every week in the more populated counties.  Each court has its own set of “local rules,” which means your experience may differ from someone else’s.  Some courts are very quick to call cases to trial, and some are slow. Some courts require all parties to show up on Monday only to call one to trial and reset the rest.  This process can become frustrating, and many Plaintiffs can become disheartened with the whole thing. Don’t worry! Your case will eventually be tried!

A typical car wreck trial will start with pretrial motions, when the attorneys and judge discuss what evidence is going to be allowed.  Then voir dire, where the attorneys speak with a panel of potential jurors. The attorneys are allowed to “de-select” jurors, and then the final Jury is selected.  Next comes opening statements, presentation of evidence, and closing arguments. Every case is different, so going into detail at this point won’t be helpful. At a minimum, the Plaintiff will testify.  This is a lot like your deposition, only more evidentiary rules will apply. Your attorney will prepare you for this part before trial.

The Jury will then go into a room and deliberate.  They will have a document with them called the Jury Charge.  This has questions they must answer, which include monetary damages in most personal injury cases.  When the Jury is finished deliberating, the verdict is announced in court. A judgment is prepared for all parties to sign and the judge will enter a judgment 30 days after the verdict.  At this point, the case is finished! If the judgment included monetary damages, the final amount will be calculated, and a check will be issued to the Plaintiff’s attorney. (See Phase 5 for what to expect after settlement.)  

Every case is different, and none of the above was intended to be legal advice.  If you have questions about your personal injury suit, call Attorney Zach Herbert at 214-414-3808 or schedule a consultation.

 

Media Contact:

Attorney Zachary Herbert

(T): 214-414-3808

https://zachherbert.attorney

If Your Personal Injury Case Goes Wrong After Negotiation

If Your Personal Injury Case Goes Wrong After Negotiation | Zach Herbert

This is an ongoing series where Attorney Zach Herbert outlines the phases of an average personal injury case.  Not every case will follow this exact outline, as each case is different. If you missed the last installment in this series, visit it here “What to Expect in the Middle of Your Personal Injury Case” on the Herbert & Eberstein blog.

After you have gone through the steps of gathering evidence and negotiating your personal injury case, you will then have to decide if you want to settle your case. If you decide against a settlement pre-suit, the next phase to expect will be filing a lawsuit with the assistance of your Dallas personal injury attorney.

Phase 6: Filing Suit

At this point, your case has not settled, either because there were no offers, or you decided not to accept the offer to settle.  Regardless of the reason, a lawsuit must be filed. At this point, you might be thinking “I don’t want to go to trial!” Don’t worry just yet.  A very small percentage of civil cases that are filed end up at trial. In fact, more than 95 percent of all cases settle, depending on which county you are filed in.

The county your case is filed in depends on two things: where the personal injury happened and where the person you are suing lives.  A suit can be filed in either place. So, if you wreck happened in Dallas County but the person who caused it lives in Collin County, you can file your suit in either county.  Your lawyer will give you his or her advice on which county is best for your case.

The person you sue is called the Defendant.  In a car wreck, even though the person who caused the wreck has an insurance company that is paying for the damages, you must still sue the individual instead of the insurance company.  This is very old Texas law. In fact, the jury must never be told that an insurance company is paying or involved. The jury only sees that you sued the person responsible, not the insurance company.  Any evidence of an insurance company being involved is redacted from all documents as well.

Negotiations are all about what both sides think will happen at trial.  After all, the only reason you settle your case is because you don’t think you can recover more at trial than what they are offering now.  Sometimes settlements occur because the risk at trial is greater than what we are willing to take. Your attorney will guide you through this process and offer advice on your chances at trial.  The reason we are talking about negotiations now is because negotiations happen throughout litigation. Sometimes cases settle right after suit is filed, the day of trial, and everywhere in between.

It could take over a year and a half from filing suit to trial, and even longer than that.  This all depends on the county, the court, the judge, and the number of cases filed the previous year.  Your attorney has no control over how fast you get to trial. But remember, even though you have a trial date that is years away, most cases settle before that.  In fact, a typical car wreck case settled approximately 8-10 months after suit is filed.

Phase 7: Service

Once the lawsuit is filed, the Defendant must be served.  The court will issue a citation, which is a document that tells the Defendant that they have been sued and what to do.  The citation will be given to a process server, who will then personally serve the Defendant with the lawsuit. At this point, discovery is also served with the citation.  More on discovery later. Once served, the Defendant has until the Monday after 20 days to answer the lawsuit. Most of the time this process takes a couple of months. The process server must find the Defendant, and then the Defendant must notify his or her insurance company of the service.  Insurance companies in Texas do not have to defend an insured until they are asked to by their insured. This means that sometimes the Defendant might sit on the lawsuit, delaying the whole process. Or the Defendant skips town and is never heard from again. While this rarely happens, it is something to be prepared for.  But don’t worry, there are ways to work around an uncooperative Defendant.

Phase 8: Discovery

Discovery is where both sides exchange documents and media related to the case.  A set amount of questions are allowed to be asked in written form, as well as requests for documents.  These are called interrogatories and requests for production. Without going into the complex discovery rules in Texas, generally speaking, this is where we find out more about the other side’s position.  We ask written questions and they respond in writing. We ask for pictures, videos, and other documents and they respond with those documents. If the Defendant does not or objects, we might move the court to compel them to produce those documents.  

The Defendant is also going to ask us questions.  Most of the time we will need you to help us answer them, as you are the best person with the most knowledge about your case.  When we are served with discovery, we have until 30 days after service to answer. This is a short deadline, so we need to meet quickly to answer all of the questions and serve our answers.  The Defendant’s answers are due 50 days after service of the lawsuit, or 30 days after service of the requests, whichever is longer.

Once discovery is conducted, both sides have a better understanding of what the lawsuit will entail.  At this point, motions may be filed, and getting hearings and rulings may take some time. But most of the time, the case proceeds to the next phase, which is the deposition phase.

If you have been injured as a result of someone else, call Lawyer Zach Herbert at Herbert & Eberstein today. You may be entitled to receive compensation and should speak with an attorney to know all of your legal options.

Next up: Phase 9: Deposition Phase

 

Media Contact:

Attorney Zachary Herbert

T: (214) 414-3808

http://zachherbert.attorney

What to Expect in the Middle of Your Personal Injury Case

What to Expect in the Middle of Your Personal Injury Case | Zach Herbert

This is an ongoing series where Attorney Zach Herbert outlines the phases of an average personal injury case.  Not every case will follow this exact outline, as each case is different. If you missed the first installment in this series, visit it here “Different Phases of a Personal Injury Case” on the Herbert & Eberstein blog.

Once you have taken the first steps in beginning a personal injury claim, you will likely want to know what to expect next. After reporting your claim and going through liability determination, you should expect to go through these phases in your personal injury case next. 

Phase 3: Gathering Evidence/Demand

How long will this take?  This is a common question, and the most honest, but also most frustrating answer is “It depends.”  It depends on the following: the nature of injuries, the amount of treatment needed, the estimated coverage available, and the level of complexity of the case.  First, injuries in personal injury cases can range from minor to severe, and even death.  Minor injuries do not take long to heal, and the medical treatment associated with those injuries will also not take much time.  The severity of the injuries sustained in a personal injury event, like a car wreck, dictates how long the evidence gathering phase takes.

The whole point of this phase is to get a good picture of what damages the negligence of the defendant caused.  Put another way, how much were you hurt? To get a good snapshot of how much you were hurt, we must first look at the damages that are allowed to be recovered in a personal injury lawsuit.  Not all damages will be listed here, but the most common ones are medical expenses, pain and suffering, mental anguish, and physical impairment. Damages can be divided into two categories: economic and non-economic.  

Economic damages are those that you can get a receipt for.  Examples of economic damages are medical expenses, property damage, loss of use, and lost wages.  These are relatively easy damages to calculate. Because these damages are so easy to calculate, insurance companies and lawyers tend to value cases based on these damages alone.  However, non-economic damages can be much more than economic damages.

Non-economic damages are intangible – they include things like pain.  If someone causes another person pain, compensation for that pain is possible.  However, quantifying another’s pain is very difficult. Thousands of trial books have been written on this subject.  However, the best way of looking at this is considering how much we spend to take pain away – from over the counter to anesthesia, taking pain away is very important to us, and expensive.  Causing another person pain should be measured in the same way.

In Texas, the statute of limitations for most personal injury cases is two years from the date of the incident.  This means a lawsuit must be filed against all responsible parties before two years is up. A trial does not have to happen by then, and in fact, many trials take place after the statute has run.  More on that later. For now, remember that no matter how severely injured you are, the clock is ticking on the lawsuit. Most lawyers will want to get the snapshot of your injuries over to the insurance company within a year.  This gives them enough time to negotiate, gather any additional evidence, and prepare a lawsuit.

A demand contains that snapshot.  In Texas, a demand to an insurance company needs to have all the evidence available to allow the insurance company to make a reasonable settlement offer.  At this point, attorneys vary on what their demands look like. Some think they need to be 10 pages long and summarize all medical records. Some think demands need to be only a page.  The reality is that demands need to have all the medical records and bills and any other evidence attached so the insurance company can have an opportunity to evaluate the case.

Phase 4: Negotiation
A reasonable time must be given to the insurance company after the demand is sent.  This may range from a few weeks to a month. Depending on how large the demand is, insurance companies may request an extension on their response.  When an insurance company responds to a demand, they usually do this in writing. Any offers to settle a case are for all damages. Rarely are offers itemized.  This means that whatever an insurance company offers, you get what is left after Attorney’s fees, expenses, and unpaid medical bills. Your attorney will communicate the offer to you, and estimate how much will be left for you, and then give his or her advice.  This advice usually is either take the offer or don’t take it. You are the only one that can settle your case. Your attorney merely gives you advice.

Negotiations may last a while.  The insurance company might want more information, or might lowball the first offer and necessitate some back and forth.  Your attorney might wait until he or she thinks they have the highest possible offer before they give you a final number and settlement advice.

Phase 5: Settlement pre-suit
If you decide to settle your case at this point, you are finished!  No lawsuit will be filed and no trial will take place. Roughly 50-60 percent of personal injury cases settle at this point.  However, many things must happen after the settlement. Any liens must be negotiated, the payment must be received, and the attorney must create an accounting for your approval.  Sometimes this can last 45-60 days after a settlement is reached. The settlement check will be deposited into a trust account until the final accounting is ready for your approval.  Once you receive your check, you don’t have to worry about federal income taxes – personal injury settlements are tax free!

If you have been injured as a result of someone else’s negligence,  you may be entitled to receive compensation and should speak with Lawyer Zach Herbert at Herbert & Eberstein today.

 

Next up Phase 6: Filing Suit

 

Media Contact:

Attorney Zachary Herbert

T: (214) 414-3808

http://zachherbert.attorney

 

Different Phases of a Personal Injury Case

Different Phases of a Personal Injury Case | Zach Herbert

This is an ongoing series where Attorney Zach Herbert outlines the phases of an average personal injury case.  Not every case will follow this exact outline, as each case is different.

No one ever imagines that they will be injured as a result of someone else’s negligence.  But when it happens, most people are unsure of what to expect during a personal injury case. When a person is injured and in need of a Richardson personal injury attorney, the following is an outline of what to expect.

Phase 1: Reporting claim/treatment

When you are involved in a personal injury event, such as a car wreck, 18 wheeler wreck, or slip and fall, reporting the event to the insurance company begins the entire process.  It is crucial to not delay this first step. There could be multiple insurance companies involved, complex coverage issues, or specific reporting requirements related to the claim.  Finding coverage is important at this step in the process. If there is no insurance available, then it will become very difficult to obtain compensation.

Once coverage is identified, the insurance company(ies) involved will need basic information to be able to “set up a claim” and assign a claim number to the case.  This number should be on all correspondence to make sure that everything is being saved by the insurance company to the correct file. In a car wreck, insurance companies need the basic facts of the wreck, a police report if available, a general nature of the injuries, and names all parties involved and any witnesses.

 While all of this is going on, so is treatment.  All personal injury events involve medical treatment.  This may be from a hospital, orthopedic doctor, chiropractor, or primary care physician.  At this point, documentation is key. While you can say to an insurance company that you are hurt, there is no proof unless you are checked out by a medical professional and he or she writes your symptoms and diagnosis down in a medical record.  At this point, every case is different. Some cases last a very long time while treatment is completed. Some cases are very short, as minor injuries do not take as long to treat. At the end of the day, the point of all of this is to get a clear picture of what was caused by someone else’s negligence.  To put it a different way, the insurance company needs to know what happened and what was hurt.

Phase 2: Liability Determination

Every case will have a liability determination early on.  This is done by the insurance company after gathering the basic facts of the case and speaking to any witnesses.  A liability determination is important because it is a key part of any personal injury case. Liability is another way of saying “who is at fault” or “who is responsible.”  If the other person is not found to be at fault or responsible by an insurance company, then they will refuse to pay, no matter how badly a person is injured. We call this “denying liability.”  This is not necessarily the end of the world, as there are ways of getting over a bad liability determination. However, more evidence is needed. For example, if a person runs a red light and hits you, but tells his or her insurance company that their light was green, then the insurance company will most likely deny liability.  But if a police report is made that places responsibility on the other person, or if a witness can be found, then the liability determination may be reversed.

Most times liability is “accepted” by the insurance company.  This now allows the insurance company to begin to pay for damages caused by their insured.  A good example of this is property damage. Once liability is accepted, the insurance company will assess the property damage and make an offer to pay.  In the case of car wrecks, this is usually the fair market value of the vehicle right before the wreck occurred. Many times, this is less than what a new car will cost, or less than what is owed on the car.  It is important to purchase gap insurance to defray the costs incurred in these situations.

Personal Injury Protection and Medical Payments coverage, purchased through your insurance company, do not require a liability determination before paying for damages.  If you have purchased collision insurance and decide to go through your insurance company, no liability determination is required before your insurance will begin paying for damages.

If you have been injured as a result of someone else’s negligence,  you may be entitled to receive compensation and should speak with Lawyer Zach Herbert at Herbert & Eberstein today.
Next up: Phase 3. Gathering Evidence/Demand

 

Media Contact:

Attorney Zachary Herbert

T: (214) 414-3808

http://zachherbert.attorney