LESSON  8

Insight into Civil Litigation 1 - A personal Injury Case Court Trial

 

Section 1.  Reform of the Civil Procedure in California

 

Subsection 1.1

  

When we introduce civil litigation in America, we shall see it from the perspective of an insider lawyer because our readers are not likely to be involved with criminal law but they are much more likely to be involved directly or indirectly with civil litigation.  

 

Subsection 1.  A Movie Director's Nightmare 

 

Some people have said that a lawyer confronting a jury trial plays a role similar to a movie director.

 

Imagine a movie director is preparing to film a police and gangster in high speed car chase with explosion in Hollywood. On the day of shooting the scene, the preparations have been made: all main streets have been closed; the police car, explosives, temporary actors and the camera men are all in place. At 9 o'clock in the morning, the family of the leading man called the director and said the actor had an emergency illness; the outlook was uncertain. Therefore, the filming had to be postponed. A new date will be set when the health condition of the leading man is known.

 

Suppose you are this hapless director and all the preparations and investment have vanished, would you cry to high heaven and break down in tears and screams?

 

Similar to the movie director, a lawyer preparing for a jury trial has what kind of nightmare? That will be when all the witnesses are getting together in court waiting for the judge to show up, the court calls and says that the judge does not have time in the next few days to commence trial of your case;  you should prepare for a new date. Thus, not only several weeks of preparation have fallen apart, whether the witnesses who you have tried so hard to locate will still be willing to appear in court to testify becomes highly problematic.

 

The last ten years of the twentieth century was the period when the cumulated mountains of civil cases reached their congestion peak in America. In big cities such as Los Angeles, San Francisco, and New York, a civil case usually requires four to five years of waiting before there is a chance for a trial in court.  

 

In that period, if you were a lawyer practicing in Los Angeles, waiting for the court to give you a trial date for the civil case you are handling is simply nightmarish. The anxious waiting, the unsettled feeling and the pressure become more unbearable than the combat in an actual trial. I have mentioned before that in American civil litigations, jury trial is a very small percentage of the total number; the endless wait is a reason. Later, under these circumstances of congestion, renting a judge to arbitrate as a substitute for a trial in court became a new business. The benefit of renting a judge is that there is at least a firm date for trial. 

 

Subsection 1.2.  The Thunderous Onrush of Reform

 

Beginning with the 1990's, the state that had the most serious uncleared case load finally carried out a series of reform like a storm that sweeps down and achieved important successes. The most important reforms are as follows:

 

- Increase the jurisdiction limit of small claims court from $2,500 to $5,000  

- Mandate smaller cases from $5,000 to $15,000 to be handled by arbitration.

- The courts are to utilize more high tech equipment and process (such as the internet, video,             telephone conference) to manage affairs.

- Simplify civil procedures for litigation

- Set up a uniform system of charts and form for the most common litigations and procedure.

- Consistent with the trend towards conservatism since the President Reagan era, judges, jury and   insurance companies tend to reduce the generous compensations awarded to the party seeking     damages to cut down the enthusiasm to sue for money.

- Strengthen the management of the court calendar and strictly enforce the deadlines;  lawyers         who  miss them are given no leniency. If a case does not come up for trial, it can be dismissed.       After five years the dismissal becomes mandatory.

- In civil litigations, jury does not need unanimity.  A nine to three decision is sufficient.

- Extend the statute of limitation of personal injury traffic cases to two years. In other words, the       party seeking compensation had two years to resolve his claim by settlement before he decides     to file a court action.

 

After the above series of reform were carried out for ten plus years, results were actually achieved. The number of accumulated case load in the superior courts was much reduced. New court filings were also lessened. And waiting for a jury was no longer as far into the future as before.

 

Subsection 1.3. Writing ten thousand words is not worth directly coming to the point

 

The sweeping reforms and the social trend of conservatism also brought a less obvious but quite important change.

 

In the Simpson case, the presiding judge Ito did not exercise strong control of the courtroom and allowed the defense lawyers virtually unlimited freedom to express themselves, a principal reason for the circus atmosphere of the trial. The performance of Ito was severely criticized by the analysts. It happens that the reforms in California began after the conclusion of the Simpson case. After the reforms, more and more judges strengthened their control of the situation, increase the pace of trial, and cut down the chance of lawyers putting on a "show".

 

There is a type of American lawyers known as a Rambo Lawyer. Rambo was the lone hero created by Hollywood movies. This type of lawyers never compromise nor cooperate. They put up a front of being prepared to battle to the bitter end whether the case is big or small. Since the era of reforms, this type of lawyers are less frequently found.

 

In reality, lawyer is originally a conservative profession and is a profession quite tightly regulated.  Since the above reforms were instituted, the opportunity for free lancing, creative speeches and verbose, eloquent debates is reduced further. The lawyer who makes good use of precious time and speaks concisely and comes directly to the point is a successful lawyer.

 

Section 2.  Traffic Accident and Personal Injury

 

Car production is one of the biggest industries in America. Any business connected with the car, such as highway construction, gasoline, insurance and repair are also big businesses. Almost every person in America drives a car, and almost every driver or passenger has an experience with traffic accident. Traffic accident litigations, particularly in accidents that involved personal injury, are a major business for many American lawyers, regardless of whether they represent the plaintiff seeking damages or insurance companies.  

 

It is difficult to generalize about traffic accidents. But I shall use two simplest examples to illustrate.

 

One day I was driving on a road at low speed after work. Suddenly my car was struck in the back by a car behind me. I saw from the rear view mirror that the car behind me was a Mercedes sedan. The driver was an elderly person. To avoid blocking traffic, I pulled over to the roadside. The Mercedes also followed and stopped. I got out of the car and inspected and found that there was only minor damage to the car.  At this time the elderly person approached me and said he was a physician.  He said, "Your car has no damage.  Let it go".  At first I was thinking that the accident was minor and no report to the police was necessary.  But I still followed the rule and exchanged with the other driver insurance information pursuant to the rule and then we went our separate ways.

 

When I returned home, I examined the car more closely and found that there was a dent in the the middle of the rear bumper. So I took the car to a body shop to repair and found that there was additional damage to the inside of the bumper. The repair costs $900. So I had to report to the insurance company of the other driver and gave information on what happened, the name of the insured, date, time and repair cost. Because the insurance company did not deny the other driver's liability (the elderly person who hit me) and paid the repair cost promptly, the matter was resolved.

 

From the above example we know that when involved with any traffic accident, no matter how minor, one must not neglect the basic procedure and exchange with the other side personal and insurance information. Upon returning home, one should record the date, time place of the accident, the presence of any witness, and how the accident occurred in detail so that if the other side demands compensation the record will be useful.  In the above situation, if I had been a little neglectful I would have lost $900.

 

Take another slightly more serious example. On another trip returning home after work, I was driving in central city and stopped before a traffic light under normal traffic conditions.  Suddenly a female driver rear ended me with a heavy bump.  The rear of the car was damaged and I felt slightly dizzy. As this incident was more serious and the evidence at the site of the accident might need to be preserved, so I did not drive away from the site though traffic was blocked; I merely called the police. Within five minutes the police arrived. They took down the statements from both sides their names, addresses and insurance information. The female driver honestly admitted to the police that she had been absent minded while driving and did not see the traffic light and did not stop, causing the accident. The police asked me if I had injury and if I needed emergency transport to the hospital. I said I did not have any problem besides a dizziness and did not need emergency aid.

 

Unexpectedly, the next day I felt a severe headache, persistent dizziness and spasm at the back of my neck. Based on experience, the symptoms were those of a commonly seen whiplash injury.  That type of pain might not appear at the time of the accident. Often they intensified gradually after one or several days. According to common practice, I then took the following steps:　　

 

1. Visit a doctor to get diagnosis and treatment and try to heal completely as soon as possible.

2. Report the accident to my own insurance company.

3. Either I report myself (or hire a lawyer) to the other side's insurance company about the facts of 

    the accident and indicated that I sustained injury and was receiving treatment. When my  

    condition became stable I would inform them and ask for compensation.

4. I obtained a copy of the accident report from the police.

5.Using a note book, I recorded in detail the time and location of the accident and how it

   happened. I took down the condition of the injury and the symptoms over different times, such

   as headache, pain locations in the body, insomnia, and also the time lost at work due to the

   accident, the termination or reduction of normal activities such as driving, house work, exercise

   or gardening, etc. The detailed record in a note book or diary would be very useful when I

   reported to the police or in the event of litigation. Otherwise, as time passes and memory

   becomes dim, by the time of litigation the failure to remember facts clearly would be a great

   disadvantage.

6. If a lawyer has been retained, then I would refuse contact with any person from the opposite

    side, including the driver, investigator of the insurance company, or attorney but refer them to

    my own attorney. Generally, if the opposite side know that you are now represented by counsel,

    they should stop contacting you directly.  

7. The most important point is that, in case of injury in an accident, patience is absolutely needed. 

    Before the injury has been stabilized, one should not settle out of court with the other side. The

    reason is that any settlement is a one time affair.  If you settle before all the injuries and losses

    have been completely discovered, future discovery of additional injury would be excluded and

    no new demands would be allowed.  Often accident injury case take several years to resolve

    because the condition of the injured person remained unresolved after many years, so a

    definitive compensation can be confirmed.

 

In California, all the personal injury claims, including traffic accidents, are required to be filed with the court within one year. Beyond one year, the inured party is deemed to have given up the right to sue voluntarily. Therefore within a year after an accident, one must not neglect the time limit to file a lawsuit with the court.

 

I have given two examples above based on my own experience. They were so simple because both parties had insurance and there was no dispute about liability. The injury and losses were also not complicated. The simple examples permit the reader to grasp basic procedural principles. However, in more complex accidents, when liability, witnesses and property evidence are disputed, and injury remains unresolved over a long time, then the analysis will have to be done by experts and lawyers and generalizations will not be sufficient.