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So the Insurance Company won’t treat you fairly…Now What?

By Texas Personal Injury Attorney, Scott Robelen

You have been injured in a car accident that was not your fault.  You have mounting medical bills, you have taken time off work because of your injuries and to go to treatment and you have experienced a great deal of physical pain and emotional drama.

You felt the insurance company might treat you fairly so you tried to settle your claim on your own, only to find that the insurance company doesn’t care about you.  You hired an attorney to take you through the claims process and still the insurance company refuses to pay you what would be deemed by any moral standard to be fair.  What do you know?  The only answer: Welcome to Litigation.

Litigation is the process of pursing your claim against the other driver through the court system.  Make no mistake, this is not an easy process nor is it a pleasant one for any of the parties involved.  The first step in the process is confirming the facts of the accident, the nature and extent of your medical care and the extent of your monetary losses, including medical bills and lost wages.  Once the appropriate defendant has been identified, a lawsuit is prepared on your behalf, and we begin efforts to locate the defendant so we can serve them with the lawsuit.

You are now approximately 60 days into the litigation process.  The defendants insurance company hires an attorney to represent the other driver and files an answer with the court essentially denying all of your allegations.  At this point, the case is at issue.

Along with filing the answer denying your claims, the defendants attorney will send you written discovery requests.  These will consist of requests for disclosure, interrogatories, and request for production of documents.

The disclosures that you will have to answer will apprise the defendant of the exact nature of yours claims, the extent of monetary damages  that you are claiming, and all persons whom you believe may testify on your behalf when this case eventually makes it before a jury.

The interrogatories are a series of written questions to you regarding the nature and extent of your claim, the nature and extent of your injuries, your medical history, your previous claims history, and to a certain extent much of your personal history including educational history and any criminal history that you may have.

The request for production of documents is the defendants opportunity to obtain from you any documents you intend to use at the trial of this case, including medical bills, medical records, police reports, photographs and any other written or recorded documents that you have that you think might be helpful in the trial.  Of course, the litigation staff here at Bailey & Galyen will assist you every step of the way in responding to all of the defendants written discovery requests.  At the same time we will have sent similar requests for discovery to the other driver which they will answer with the assistance of his or her attorney.

You are now approximately 4 months into the litigation process.  At this point, some courts will allow us to request a trial date, which will generally be 9-12 months from the date of our request. In most other instances, the court will assign us a trial date at its convenience which, again, will generally be 9-12 months from the time the written discovery has been completed.

During the time leading up to the first trial setting of your case, your attorneys will be busy collecting your medical bills, records and evidence of lost wages in admissible form.  You see, we can’t simply show your medical bills to the jury.  The medical bills and records have to be verified by affidavit from each one of your doctors.  Depending upon how many doctors you have seen, this process could take as long as 6 months and cost between $1500 and $3000.

At the same time, your case manager will be scheduling the depositions of the parties and witnesses in the case.  Depositions are a process through which each party can find out what the other party is going to say at trial.  You will be side by side with your attorney in one of our conference rooms, in the presence of a court reporter and you will be placed under oath to tell the truth the whole truth and nothing but the truth.  You will then be interrogated by the other sides lawyer regarding anything from your past personal history to your current medical care and condition and all the facts and circumstances surrounding not only this accident but any other accidents you may have had in your entire life.  You will be prepared for your deposition by your attorney shortly before that your deposition is scheduled.  It is a simple yet important process in your lawsuit.  Of course, the other driver will also be interrogated at length by your lawyer regarding their version of the accident.  Additionally, any other persons who have claimed to have witnessed the accident will also be subject to the same interrogation so that their testimony may be read at the trial of your case.

You are now 8 months or more into the litigation process.  You have a trial date sometime in the next 6-12 months.  However, before the court will allow you to try your case before a jury, the court will require you to attend mediation.  Mediation is simply an informal settlement conference held at the office of another lawyer, known as a mediator.  The mediator, while generally appointed by the Judge does not have the power to force the parties into a settlement.  The mediator will simply discuss the pros and cons of your case with you in the presence of your lawyer and will see if there is some middle ground between you and the insurance company in terms of settlement.  At the end of the day, if the insurance company makes you an offer that you can live with, even though you may not be entirely happy with it, the case will be resolved and there will be no further litigation required.  You will be paid in 2-3 weeks following the mediation, and all of your medical bills will be taken care of from the amount of the settlement.

Following an unsuccessful mediation, you will notice a decrease of activity in your case.  That is simply because we are now waiting for our assigned trial date.  Trials generally start on a Monday but unfortunately, we never know until the Thursday before the Monday trial setting whether or not we will be called to trial.  The reason for this uncertainty is because the courts will set 5-10 cases for trial on any given Monday knowing that half of those cases will settle, and some of those cases will not be ready for trial.  Generally, the oldest case on the courts docket that is ready for trial is the one that is called.  Again, we will not know whether we are called to trial until the Thursday preceding the Monday trial setting.

There is a strong likelihood that you will not be called to trial on your first or even second trial setting.  Again, this will seem to you like nothing is happening in your case and you would be correct.  We are simply waiting for the next trial setting because all of the work in your case has been done and the case is ready for trial.  Once the case is called to trial, your attorney will meet you on the Friday before the trial setting to prepare you to testify.  The following Monday you will meet your attorney 30-45 minutes prior to the trial and the trial will begin before the assigned Judge.

Like the litigation process the trial process consists of several parts.  First, the Judge and the two attorneys will have a pre-trial conference to discuss the evidence at trial and other matters about procedure.  After that, the jurors for your case will be called to your court room and the lawyers will have an opportunity to question potential jurors to seat a jury of either 6 or 12 fair and impartial jurors.  Once the jury is seated, normally around lunch time, opening statements are given by each side.  Following opening statements, the court takes testimony, including your testimony, about the accident and the nature and extent of your injuries and damages.  Often times your doctor will also be called to testify about the nature and extent of your injuries as well as any future medical expenses that you can expect as a result of the accident.

Following such testimony, the defense has an opportunity to present their side through testimony of the defendant and any other witnesses they want to call.  Once they have done that, both sides rest and close their case and the courts instructions are read aloud to the jury.  The jury then takes the written instructions into the jury room where the jury will deliberate and decide two questions: Were one or both of the parties negligent in causing the accident; and what are the nature and extent of the damages to which the Plaintiff is entitled.  If the jury finds that the defendant, the other driver was negligent in causing the accident and awards your money, a judgment will be rendered in your favor for the amount of damages that the jury has found to which you are entitled.  The insurance company will finally be required to pay whatever the jury has decided you are entitled to.

As you can see litigation is a very long process.  It is a stressful process from beginning to end and it is not a pleasant process for either the plaintiff or the defendant.  The bottom line is if you can resolve your case against the other driver and your insurance company for an amount of money that you can live with, even though you don’t think it is fair, it is in your best interest to do so.  However, in other circumstances where the insurance company simply refuses to pay you for what you think is reasonable, our litigation attorneys here at the law firm of Bailey & Galyen are ready, willing and able to step up to the plate for you and take your case from start to finish all the way through the litigation process to get you the justice you deserve.

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Taking away right to sue when wrong has been done isn’t helping Texans

Op-Ed in the American Statesman
by Alex Winslow, Local Contributor and Executive Director of Texas Watch Texaswatch.org

While the state is crumbling under a real health care crisis, Gov. Rick Perry and his friends in the special interest lobby continue defending a lobbyist-driven health care battle from a decade ago that has failed Texas patients.

They want you to believe that taking away the legal rights of patients is good medicine. Try as they might, though, there is no disputing the facts:

Texas ranks dead last in the quality of health care, our health care costs are soaring at a rate faster than the national average, we rank near the bottom in the number of doctors who actually see patients, and we have the highest rate of people without health insurance. These are facts, not spin-doctored anecdotes like the ones the governor and his cronies in the insurance lobby like to use.

Back in 2003, politicians and lobbyists made a pack of promises about what they alleged would happen if voters approved a ballot proposition that severely and arbitrarily restricted the legal rights of Texas patients.
Among them was that what you spend on health care would go down. Turns out, they lied. Now, they are trying to cover their tracks.

Insurance industry lobbyist John Opelt recently said, “We did not and have not led voters astray.”

Really? Numerous political mailers paid for by Opelt’s group during the 2003 campaign tell a different story.

One mailer said the ballot initiative would “reduce … health costs.” Another said it would make “health care more affordable and available for all Texans.”

All of this comes from a playbook they’ve been using for decades: Claim there is a crisis of some sort, say that restricting individual legal rights is the solution, promise Texas families and small business owners the moon, and attack anyone who disagrees.

Texans are smart, though. We know when someone is pulling a fast one.

How can it be that eliminating accountability for polluters, careless nursing homes, insurance companies, Wall Street bankers and big drug makers is good for the public? The answer is that it can’t be.

Numerous academic studies by independent organizations and legal scholars prove that it is a fallacy to claim that taking away the legal rights of individuals will benefit the public at-large.

Whether we are talking about patients, policyholders or small business owners, we have seen time and again that when lobbyists succeed in stripping or curtailing individual legal rights, the public is harmed.

The only ones who benefit are a narrow group of special interests.

Yet every time one of these proposals comes to the Texas Legislature, the lobbyists claim this will be good for all Texas citizens.

Texans know better. We believe that accountability is good and necessary. This is a basic value we teach our children.

When a person or corporation causes needless harm, they should be held responsible for it. Plain and simple.

When wrongdoers succeed in getting away with the harm they cause, the rest of us are left to pick up the pieces and pay the tab.

Texas faces a host of real-world problems, including a broken health care system. It has been a decade since the governor signed away the rights of Texas patients under the false promise of better, cheaper, and more accessible care.

Sadly, rather than admitting he was wrong, Perry has chosen to be campaigner-in-chief and head lobbyist for the special interests.

Texans deserve real solutions from leaders who understand the importance of personal and corporate responsibility, and who want to find answers to our state’s problems that improve the lives of everyday Texans — not just a narrow group of powerful interests.

The New Battlefront

by Steve Sanderfer

At Bailey and Galyen, we are keenly aware of how the legal landscape changes. Through the years, we have always stayed one step ahead of those changes, and we have adapted to meet the challenges as they arise to better serve our clients.

Recently, several of the major insurance companies have declared war on YOU, the injured victim. All of these companies with their cute television ads and promises to be there for you actually don’t care about you at all.

The new tactic these companies use is to seriously undercut what you deserve for your accident, especially when your medical bills are less than $6,000. They hope that if they offer you thousands less than what your case is worth, you will drop your case. They also hope that your attorney will choose not to pursue further legal action in those cases. Their goal is to chase you, the victim, away and force law firms out of business.

But at Bailey and Galyen, we do not run. We fight.

Bailey and Galyen has always had a litigation department. And Bailey and Galyen’s litigation department will continue to be the finest litigation department in the state.

But to combat the new insurance company tactic, Bailey and Galyen now, in addition to its litigation department, will have a small claims department. This department will fight the litigation battles for those cases in which the medical bills are $6,000 and under. Where other firms might withdraw from those cases, B&G simply sees this as another way to fight for YOU.

And that is what Bailey and Galyen is all about.