When settlement fails-commencing the lawsuit

• Author: Ellsworth T. Rundlett III
• Pages: 549-682

WHEN SETTLEMENT FAILS—

COMMENCING

THE LAWSUIT

5-1

CHAPTER 5

WHEN SETTLEMENT FAILS

COMMENCING THE LAWSUIT

§500 IN GENERAL

§510 FILING SUIT

§511 Essential Elements for Filing Suit

§511.1 Commitment

§511.1.1 Preparing Yourself Mentally and Emotionally to File Suit

and Possibly Try a Very Small Case (Under $20,000)

§511.1.2 Ten Tips to Mentally and Emotionally Prepare to File Suit

and Possibly Try the Very Small Case

§511.2 Complaint

§511.2.1 Form Complaints

§511.2.2 Default for Failure to File a Timely Answer

§511.2.3 Ten Tips on Default for Failure to File a Timely Answer

§511.2.3.1 Form Aff‌idavits in Opposition to

Defendant’s Motion to Strike Default

§511.3 Cost Containment

§511.4 Client Conduct During Suit

§511.4.1 Be Prepared for Discovery by Defense

§511.4.2 Sample Interrogatories From Defense Counsel in an Automobile Case

§511.4.3 Sample Request for Production of Documents

from Defense Counsel in an Automobile Case

§511.5 Control of Case

§511.6 Plaintiff’s Checklist of Activities Affected by the Injury

§512 Nine Major Case Weaknesses to Consider Before Filing Suit

§512.1 Pre-Existing Injuries

§512.1.1 A New Solution to Pre-Existing and Subsequent Injury Cases

§512.1.2 Checklist: Dealing With Pre-Existing Injuries or Pre-Existing Conditions

§512.2 Subsequent Accidents or Incidents That Cause Injuries to the Same Parts of the Body

§512.2.1 Checklist: Dealing With Subsequent Injuries to the Same Parts of the Body

§512.3 Subsequent Accidents or Incidents That Cause Injuries to Different Parts of the Body

§512.3.1 Checklist: Dealing With Subsequent Injuries to Other Parts of the Body

§512.4 Consumption of Alcohol by the Plaintiff

§512.4.1 Checklist: Dealing With Alcohol Consumption

§512.5 Other Insurance Claims or Lawsuits

§512.6 Your Client Has a Prior Criminal Record

§512.6.1 Checklist: Dealing With Prior Criminal Record

WHEN SETTLEMENT FAILS—

COMMENCING

THE LAWSUIT

Maximizing Damages in Small Personal Injury Cases 5-2

§512.7 Minimal Property Damage or Low Impact Soft Tissue Injuries

§512.7.1 Twenty-Four Tips on How to Handle Low Impact Soft Tissue Cases

§512.7.2 The Defense Biomechanical Expert

§512.8 Liability Depends Upon the Credibility of the Plaintiff

§512.8.1 Checklist: Dealing With Credibility Problems

§512.9 The Defendant Is a Likable Witness

§512.9.1 Checklist: Dealing With a Likable Defendant

§513 Fourteen Defense Tactics You Need to Know About Before Filing Suit

§514 Clients Who Over-Treat

§514.1 How to Deal With Possible Over-Treatment

§514.1.1 Sample Letter to Client Whom You Suspect Is Over-Treating

§520 DISCOVERY

§521 Techniques to Limit Discovery Abuse by Defense Attorneys

§521.1 An Extensive Number of Interrogatories

§521.1.1 Sample: Plaintiff ’s Motion for Protective Order

§521.1.2 Sample: Aff‌idavit of Plaintiff, John Jones

§521.2 Interrogatories Requesting Specif‌ic Liability Information

§521.3 Interrogatories Requesting Specif‌ic Medical History Information

§521.4 Abusive Deposition Tactics

§521.5 Request for Extension of Discovery Deadlines and Other Favors From Defense Counsel

§522 Maximum Discovery Techniques at Minimal Cost and Time

§523 Sample Interrogatories in Small Personal Injury Cases

§523.1 Automobile Accident

§523.2 Premises Liability

§523.3 Products Liability

§523.4 Special Interrogatories Regarding Insurance Coverage in Intentional Tort Cases

§524 Depositions

§524.1 Instructions and Checklist for Plaintiff’s Deposition

Sample: Instructions for Plaintiff’s Deposition

§524.2 Checklist for Defendant’s Deposition in Automobile Accident Case

§524.2.1 Sample Deposition in a Contested Liability or Contested Damages

Intersection Collision Case, With Commentary

§524.3 Checklist for Defendant’s Deposition in Products Liability Case

§524.4 Checklist for Defendant’s Deposition in Premises Liability Case

§524.5 Checklist for Deposition of Private Investigator/Surveillance Operator

§524.6 Checklist for Deposition of Defense Physician (Independent Medical Exam Physician)

§524.6.1 Deposition Outline for Defense Doctor/Independent Medical Exam Doctor

§524.6.2 Client Attendance at Medical Depositions

§525 Video Depositions

§525.1 When to Use Video Depositions

§525.2 Checklist for Video Depositions

§525.3 Zoom and Virtual Depositions in 2020

§526 Requests for Admission

§526.1 Reasons to Use Requests for Admission

§526.2 Sample: Requests for Admission in an Automobile Accident Case

§526.3 Sample: Requests for Admission in a Premises Liability Case

§526.4 Sample: Requests for Admission in a Products Liability Case

§526.5 Sample: Request for Admission for Use in a Cell Phone Case

§527 Request for Production of Documents

§527.1 Requests for Production by Defendant

§527.1.1 Sample: Motion to Protect

§527.1.2 Request for Production of Medical Records of the Plaintiff by Defendant—

Methods of Dealing With Voluminous Medical Records Obtained by Defendant

WHEN SETTLEMENT FAILS—

COMMENCING

THE LAWSUIT

5-3 When Settlement Fails—Commencing the Lawsuit

§527.2 Requests for Production of Documents by Plaintiff

§527.3 Sample: Requests for Production of Documents in an Automobile Accident Case

§527.4 Sample: Request for Production of Cell Phone Records

§528 Dealing With Surveillance Video by Insurance Carriers

§528.1 Pre-Trial Discovery Regarding Surveillance Videos

§530 SETTLEMENT DURING SUIT

§531 Settlement With Insurance Company During Suit

§532 Settlement With Defense Attorney During Suit

§533 Settlement on the Courthouse Steps

§533.1 Settlement Without the Judge

§533.2 Judicial Settlement Conference

§533.2.1 Eleven Tips on Handling a Judicial Settlement Conference

§533.3 Mandatory Alternate Dispute Resolution

§533.4 Tips for Mandatory Alternate Dispute Resolution

§540 CONCLUSION

§550 TORT REFORM AND ITS IMPACT ON SMALL TO MEDIUM CASES

§551 Federal Discovery Rule Changes

§560 UNDERSTANDING YOUR OPPONENT: WHAT YOU NEED TO KNOW ABOUT INSURANCE

DEFENSE ATTORNEYS

§561 Nineteen Tips to Help You Deal With Insurance Defense Attorneys

§570 ANATOMY OF A SMALL PERSONAL INJURY LAWSUITIN REAL TIME

§570.1 Plaintiff’s Prof‌ile

§570.2 The Incident

§570.3 The First Conference

§570.4 Injuries to the Plaintiff

§570.5 The MRI Report

§570.6 Injury Summary

§571 Underinsured Motorist Claim Filed with Plaintiff’s Own Carrier

§571.1 Correspondence and Work Leading to the Demand

§571.2 The Demand for $25,000 Policy Limits

§571.3 The Offer from the Insurance Company—Way Too Low

§572 Commencing the Lawsuit

§572.1 Evasion of Service

§572.2 The Insurance Company’s Response to Our Complaint

§572.3 Defense Counsel’s Response

§572.4 Client Response

§572.5 Policy Limits—Notif‌ication from Defense Counsel

§572.6 The Punitive Damage Count

§572.7 Selection of the Mediator

§572.8 Referral of Plaintiff to MY Chiropractor

§572.9 The Referred Medical Examination

§573 Deposition Preparation for the Plaintiff

§573.1 The Deposition

§573.2 Telling the Truth

§573.3 Finishing Up

§573.4 Final Point

§574 Mediation—Does the Case Resolve or Do We Proceed Toward Trial?

§574.1 Conclusion