Section 3.  A Court Trial of a Traffic Accident

 

Let us use the most frequently seen traffic accident damage claim case to analyze the strategy and tactics employed by a lawyer in a civil litigation.  We can look at a civil case from three angles.

 

1. Understanding civil procedure.

2. Look inside the decisions made by a lawyer and his client.  In a litigation, the strategic decision

    is whether to accept a settlement or continue litigation. The decisions such as to choose a

    court trial or a jury trial are tactical decisions.  

3. Using the questions and answers record in the trial to explain the principles of the law of

    evidence.

 

We shall start with a lawyer accepting a traffic lawsuit. The case arises in California.  

 

Phase 1.  Accepting the Employment by a Client

 

The number of cars in the United States is huge, as are traffic accidents that give rise to lawsuits demanding damages. A minor collision is called in slang term "fender benders" or "low impact", which reflects a slight traffic dispute. These cases are often handled in small claims court.  According to statistics, 90% of all traffic claims are under 10,000 in damages.

 

A resident in San Francisco, Mr. Wang, looked up Mr. Zhang, a lawyer, and asked him if he could represent him in a traffic accident claim for damages. Before accepting the employment, Mr. Zhang obtained a traffic accident report from the police department. According to the report and Mr. Wang's narrative, the accident happened as follows:

 

In the morning of November 24, 2004, at 9:00, Mr. Wang was driving a Toyota vehicle to the university to attend a class. In the car, there was a Mr. Li sitting in the front passenger seat. There was a passenger in the back, the mother of Mr. Wang. They proceeded northward on San Jose Avenue.  As they approached the intersection with Fenellon Road, suddenly a Honda vehicle from the southeast direction behind Mr. Wang cut sharply across two lanes in the the northwest direction and blocked the front of Mr. Wang. Wang then turn left sharply to avoid the Honda vehicle but it was too late. The two cars collided and both were seriously damaged. The three people in Wang's car were injured. Later a emergency vehicle transported Mr. Li and Wang's mother to the General Hospital of San Francisco. The driver of the Honda, Tony, appeared not to have sustained injury. 

 

According to the report of the police investigation at the site of the accident, Wang said to avoid Tony's car the only thing he could do was to sharply turn left and crossed the double yellow line in the middle of San Jose Road, but still collided with the Honda vehicle.

 

The driver of the Honda, Tony, stated that he was going north on the lane closest to the middle of San Jose Road.  As he was about to turn left, a Toyota car came from behind, crossed the double yellow land in the center, and tried to pass his car from the left side, resulting in the collision.

 

After reading the police report and talking with Mr. Wang and the two passengers, confirming a consensus in their stories, Mr. Zhang said to them: The police report is not favorable to you.  Further, the opposite driver Tony intended at the time to make a U turn to join a meeting on the other side of the street. There he had Hispanic friends there and they will be eye witnesses for Tony. However, over all your testimonies are still more reasonable and credible. Mr. Zhang accepted the case.

 

Naturally, before Mr. Zhang accepted the case he had already confirmed that both Wang and Tony had sufficient insurance and had gone to the actual site to take pictures and he has also made this evaluation: Wang and his passenger Mr. Li are college students and speak fluent English and would make a good impression on the jury when they testify in court.

 

Accepting the case is the first strategic decision of Mr. Zhang. After that Mr. Zhang signed with Wang and his two people each a contingency fee agreement.

 

A contingency fee agreement between a lawyer and his client is one of the ways an American lawyer collects his fees. It is most often used in accident damage claim or collection of debt cases. The typical terms are that the lawyer agrees to seek damages at no cost. If damages are recovered before a lawsuit has been filed, the attorney will receive one third of the recovery; the client receives the balance two thirds (his medical expenses having been deducted).  If recovery is received only after a lawsuit has been filed, the lawyer will increase his share to 40%. If the lawsuit results in a defeat, the client naturally comes away empty handed, the lawyer has to pay out of his own pocket the filing fee, interpreter fee, court reporter fee and so on, that is, he sustains total loss.  Naturally the lawyer does not want to fight a war without some assurance of victory, but how many cases that guarantee success can there be?

 

After Mr. Zhang accepted the employment, he gave Wang's three people the following instructions:

1.  Do not talk to anyone about this accident because talking too much inevitably leads to losses; 

     any call or document from the insurance company are to be forwarded to Mr. Zhang.

2.  For the client, his most important priority is to get medical treatment and recover his health as

     soon as possible.  Litigation to demand damages is secondary.

3. Remain patient. Before the client's medical conditions are clear and stable, demand for

    compensation cannot commence to avoid discovery of injury such as a concussion after a

    settlement has already been reached. To make new demand will be too late. 

4. The client must maintain a record of his own injury, such as headache, insomnia, dizziness or         other symptoms. In addition to his own record, he needs to tell his physician so that the

    physician also has a record. Otherwise, when he testifies in court he may only have vague

    memory about the accident.

5. Similarly, the client has to keep all the receipts of all the medical bills, medications, wheel chair

    and other expenses incurred because of the accident.  Further, records of economic losses

    such as inability to work should be maintained, as they are all important evidence in future

    demands for compensation.

 

Phase 2:  Negotiating with the Insurance Company

 

To represent Mr. Wang's group of three clients, Mr. Zhang has to do a series of administrative tasks, including notification of their own insurance carrier and the opposite side's insurance company about possible claims for compensation and set up a claim number.  He also arranges for the insurance company to inspect the Toyota vehicle which was destroyed and to take statements of the Wang group of three persons.  Receipt and management of the flood of medical expense bills and so on being received are too many to mention here. 

 

There is a feature in the Wang case that is kind of unusual, to wit, the other driver Tony not only denied liability for causing the accident, he actually counter claimed against Mr. Wang demanding compensation. For the defense of Mr. Wang from the counter claim, Mr. Zhang turned the responsibility over to Mr. Wang's own insurance company.  The term is called "tender defense".

 

Phase 3:  The Breakdown of Negotiation

 

Several months later, the injuries of Mr. Wang et al have become stable.  After organizing all the relevant documents, including medical expenses, proof of loss of work, Mr. Zhang started to negotiate with Tony's  insurance company.

 

The negotiation did not go smoothly. The major disagreement was the injury of Wang's mother.  Her major injury was on the right leg. It was sore and very weak and did not heal even after a long treatment. Eventually a blood clot was discovered. After a year of treatment, her physician said that the limit of treatment had been reached. To recover completely the health she had before the accident was probably not going to happen.

 

Wang's mother had two additional conditions.  She had worked as a cleaning made in two hotels over a long time.  Both her knees have cumulated worn out conditions.  Further, after the accident, she had to resign from one of her two hotel jobs.  With all that, how was the economic loss going to be calculated?

 

Mr. Zhang and Tony's insurance company bargained back and forth but their difference remained.  There was no coming together.

 

Phase 4:  Decision to Litigate - Once a Lawsuit Starts, Losses begin to Mount

 

After receiving the final offer amount to compensate from Tony's insurance company, Mr. Zhang and the three clients met to discuss whether to accept the offer.

 

The three clients asked Mr. Zhang for his opinion. Mr. Zhang said the offer from the insurance company was too low and not acceptable. The other option was to file a lawsuit in court to commence litigation.  Litigation is the job of the lawyer and not a problem.  But the clients needed to have sufficient psychological preparation before deciding on litigation because it takes a long time.  During this period the clients themselves would face numerous pressures which are very consuming of energy. If the determination is not strong enough, then it is better to swallow the discontent and take the offer from the insurance company.

 

After a detailed discussion, Mr. Zhang received the consensus and support from the three clients. The decision to litigate was made accordingly.

 

Borrowing a popular from the Second World War: the moment the motor sounds, in rolls thousands taels of gold. The saying was originally related to the truck drivers delivering ammunitions from Burma and Yunnan Province to Cong Qing. (footnote: drivers will make a lot of money once car gets going).  However, Mr. Zhang's situation was: the moment lawsuit sounds, out goes all the money.  It meant that if the case needs a litigation to resolve, it was a money losing proposition not matter the outcome of trial.

 

Computing on the abacus was easy. Considering the energy, time and litigation expenses required of Mr. Zhang to litigate, he was not going to make money out of the 40% of the compensation recovery (No guarantee). Yet Mr. Zhang needed to continue a money losing business. To him, it was principle. When the opposition offered an unreasonably low sum of money, if the lawyer accepts it notwithstanding, not only would the insurance company consider him a push over, Mr. Zhang himself would feel "diminished" and lose self respect. So Mr. Zhang made the second strategic decision.

 

Phase 5:  Lawsuit Begins

 

Mr. Zhang represented the plaintiffs. Filing a complaint began the lawsuit. Delivering the complaint to the hands of Tony sounded easy, but in fact it was not necessarily simple. On this occasion, Tony had moved. After some struggle, Mr. Zhang finally found Tony's new address.

 

After Tony received the complaint, the attorney representing his insurance company, Mr. James, began to take over. Besides answering the complaint on behalf of Tony (KOC note: Tony is the "defendant", James also filed a cross-complaint against Mr. Wang.

 

Ever since the state of California implemented legal reforms, to simplify procedures and increase efficiency, the complaint and answer to complaint in many common lawsuits such as traffic compensation cases can be done by simply filling out certain forms.  One point to emphasize here is that:  after a defendant receives any complaint (not limited to traffic cases), he must file an answer to the complain within 30 days or he is deemed to have waived his rights. The plaintiff wins the lawsuit without any effort.