Mediation Process in Personal Injury Cases

Personal Injury lawyers shaking hands after a successful negotiation.

Understanding Mediation in Personal Injury Cases: A Path to Settlement

When pursuing a personal injury claim, the process of settling your case can take many different routes. In some instances, claims are settled before a lawsuit is even filed or shortly after a lawsuit is filed. In some cases, a settlement may not occur until just before the trial is set to begin. One of the key tools in the settlement process is mediation – a method used by attorneys in personal injury cases to help parties reach a resolution before the case goes to trial.

What is a Mediation in a Personal Injury Case? What is a Mediator?

Mediation is a structured, formal process used to resolve disputes between parties. Using a mediator is part of the overall ADR (alternative dispute resolution) process, which includes arbitration and other dispute resolution services. It is essentially a settlement conference, typically overseen by a neutral third party known as a legal mediator. Mediators are often experienced professionals, such as retired judges or lawyers who have extensive experience in the legal field in which you are mediating. For example, in the personal injury space, you can expect to have a mediator that was an insurance defense lawyer and maybe even a plaintiff’s attorney so that the parties can rely on their experience when trying to resolve the dispute. Their role is not to make binding decisions but to facilitate a productive discussion between the parties involved, helping them weigh the strengths and weaknesses of their respective cases. The goal is to encourage settlement by making both sides more aware of their options, and also their risks.

While some cases may be mediated prior to filing a lawsuit, mediation typically occurs after the lawsuit has been filed, and the discovery process has been completed so both sides are armed with the knowledge to allow them to make a sound decision on whether to resolve the case at mediation. The discovery phase of a personal injury lawsuit is when both sides exchange information about the case, including exchange documents, pictures and videos, and also taking depositions of witnesses and experts, allowing each side to understand the other’s position.

What Happens During the Mediation Process?

At the start of mediation, both parties typically participate in a general conference. In this initial meeting, both the plaintiff and defendant (and their respective lawyers) usually present the key points of their case. The plaintiff will outline the strengths of their case, as well as the weaknesses of the defendant’s case. Likewise, the defense lawyer will do the same, allowing both sides to gain a clearer understanding of each other’s arguments. The actual injured party typically does not speak during this time, nor are they required to answer any questions.

After this conference, the parties separate into their individual rooms. The mediator will then move between the rooms, discussing each side’s position, exploring offers and counteroffers, and providing insights into the risks and benefits of continuing the case versus settling. The mediator’s goal is to bridge the gap between the parties, gradually moving both toward a compromise.

The Goal of Settlement: Finding the Middle Ground

The success of a mediation ultimately hinges on whether the least amount the plaintiff is willing to accept is less than or equal to the most amount the defendant is willing to pay. To visualize this, think of buying a car. The car salesman has a price, but they know the buyer won’t pay the full price. Likewise, the buyer knows they won’t pay the sticker price but will make a lower offer. The negotiation process involves moving toward a price where both the buyer and the seller are satisfied. Similarly, in mediation, if the defendant’s maximum offer meets or exceeds the plaintiff’s minimum acceptable settlement, a resolution is reached.

However, not all cases settle during mediation. If the parties can’t agree, the case will proceed toward trial. Despite this, mediation tends to have a high success rate, largely because experienced attorneys can assess the risks involved and recommend a reasonable settlement value.

Do You Have to Testify at Mediation?

A common question clients ask before attending mediation is whether they will have to testify or make a statement. In most cases, the answer is no. While the process may vary from case to case, it is not necessary for the client to testify, and it is certainly not required. The role of the client is to make the final decision about what they are willing to accept in terms of a settlement, based on the attorney and mediator’s advice and suggestions. Most of the talking during mediation is between the client and the lawyer while the mediator is out of the room. Sometimes, the mediator will ask questions, but this is done without the other side in the room, or their lawyers, and is usually only to get a further understanding of the issues. Which leads me to my last, and final point….

Is the Mediation Confidential?

Anything that is discussed in mediation is strictly confidential. This includes what is said between the parties and any discussion with the mediator outside the presence of the other side’s attorneys. The mediator is only allowed to tell the other side what you and your lawyer allow the mediator to say. The process is confidential to encourage the parties to be open and forthright in their attempt to resolve the case without the fear of anything being said in the mediation to be used against them in court. You cannot go to trial after a failed mediation and proclaim “the defendant only offered us $5 at mediation! Can you believe that?!”

Is Mediation the Best Course of Action for Your Case?

Mediation is an effective tool in personal injury cases, providing a way to settle disputes before they reach the courtroom. It allows both parties to present their case and receive expert advice from a neutral mediator, which can guide them to a mutually agreeable settlement. However, the success of mediation ultimately depends on the willingness of both sides to compromise.

If you have been injured due to someone else’s negligence, it’s important to understand the options available to you, including the possibility to mediate your personal injury case. At Williams Elleby Howard and Easter, we offer free consultations to help guide you through your personal injury claim and determine the best course of action for your situation.

Call us today at 833-LEGALGA or visit us at gatrialattorney.com for more information.  Call Us! It Won’t Hurt ™

Georgia Personal Injury Claims and AI

A glowing AI micro precessor chip floating just above a dark circuit board.

What is AI? In its most basic sense, AI is artificial “intelligence” that allows machines or computers to perform tasks that would normally require human intelligence. Google Cloud gives us a straight-forward analysis of AI that includes brief answers to questions like: How does AI work? What types of AI exist? How does AI learn? What are some benefits of AI? 

AI can benefit our lives in many ways, but we should proceed with caution, especially when utilizing AI in conjunction with personal injury claims. When it comes to personal injury claims, this author, believes that current AI technology is a flawed tool for estimating the value of a person injury claim. My law partner and I dig into the “Why” in this video:

Don’t have time for a ten-minute video, no problem. Let’s take a real-world case example to understand the “Why”:

I provided Microsoft Copilot with the following prompt:

What is the value of a personal injury case with the following facts in the State of Georgia? A man visits a restaurant/bar and consumes 7 alcoholic drinks over a 4-hour period. When the bar closed, an employee asked the man to take some items outside. The man did so and was unintentionally locked out of the bar. It was very cold and raining outside. The man attempted to gain re-entry by knocking on the door and calling the employee. He was unsuccessful. Therefore, he tried to walk around the building to gain access through a rear entrance. As he walked around the building, he fell 11 feet off a concrete retaining wall and sustained significant injuries. The retaining wall was located in a dark unlit area of the property. The bar owner knew the retaining wall was a hazard; yet, no guards or railing were placed around the retaining wall. The most severe injuries were a moderate TBI and lower back disk injury. He was hospitalized for 5 days and incurred approximately $350,000 in medical bills. What is this case worth?

I received the following Answer:

I’m really sorry to hear about the injuries sustained in this incident. Determining the exact value of a personal injury case can be complex and depends on various factors, including the severity of the injuries, medical expenses, lost wages, and pain and suffering.

Given the details you’ve provided, the case involves significant injuries, including a moderate traumatic brain injury (TBI) and a lower back disk injury, with substantial medical bills of approximately $350,000. In Georgia, personal injury settlements can vary widely, but severe injury cases can sometimes reach settlements in the range of $200,000 to $500,000 or more.

It’s important to consult with a personal injury attorney who can evaluate all aspects of the case, including liability, negligence, and the extent of damages, to provide a more accurate estimate.

Would you like some help finding a reputable personal injury attorney in Georgia?

There is a lot to unpack here but I must start with the fact that CoPilot undervalued this case by over $4,000,000.00. This is the actual jury verdict our firm obtained in December of 2023 showing exactly what a 12-person jury awarded in a case with these facts:

A redacted legal document, specifically of a verdict form from a personal injury case in Cobb County Georgia where the plaintiff was found 25 percent at fault and the defendant was 75 percent at fault.
A piece of paper showing showing a Cobb County Georgia jury award of $1,840,000 on 12/15/2023.

You can learn more about this specific case here:     

But, I digress. Why, in this example does AI attempt to provide a numerical answer? Perhaps, it is because I asked it to. But why not answer the question in a way that acknowledges AI’s current shortcomings? An answer that simply encouraged me to seek the advice of an experienced lawyer would be more helpful and minimize the risk that I would be misled by the response.

The injured person would need to consult an experienced lawyer and discuss several issues that would arise in a case like this. So, what are some variables an experienced lawyer should consider in estimating case value?

  1. How can Georgia’s comparative fault laws effect a personal injury recovery? In Georgia, a jury can allocate percentages of fault between the Plaintiff, Defendant, and Non-Parties. The juries’ allocation of fault between those persons will determine whether the Plaintiff may recover and whether the Plaintiff’s total damages will be reduced. Georgia’s comparative negligence laws, would completely bar a recovery if the jury determined that the Plaintiff was 50% or more at fault. O.C.G.A. § 51-12-33(g). If the jury found the Plaintiff to be more than 0% but less than 50% at fault, the judge would be required to reduce the total damages awarded to the Plaintiff in proportion to his or her percentage of fault.
  2. Where would the lawsuit be filed? In legal circles, we call that “jurisdiction” and “venue.” Jurisdiction and venue matter! If a federal court has jurisdiction over the case, a lawyer must be admitted to practice before that court and intimately familiar with its local rules. Also, if a state court has jurisdiction, a lawyer must know what county is appropriate for filing suit. This is referred to as “venue.” Jury verdicts vary tremendously between counties in the State of Georgia and, on average, there is a clear difference in the amounts awarded by juries in traditionally conservative venues versus progressive venues.
  3. What is the legal status of the injured person? Was he an invitee, licensee, or trespasser? The duty owed by a property owner is different depending on whether the injured person is a business customer (invitee), social guest (licensee), or trespasser.
  4. Does the amount of time someone will suffer from the injury affect case value? Yes! The lawyer needs to determine whether the injuries are permanent. This is done by consulting with reputable medical professionals who can offer opinions about how the injuries will affect, if at all, the injured person over the remaining years of his or her life. Juries tend to award higher damages if the injured person suffers from his or her injuries for a long period of time.
  5. What if I’m injured, and the property has no insurance? If the property owner or occupier has no unencumbered assets and no insurance, the injured person may not want to bring a claim. After all, the “value” of the case is $0, if there is no person, entity, or insurer to pay for the damages. However, if the property owner has sufficient liability insurance to pay for the injured person’s damages, it may be worthwhile to bring a personal injury claim.

The list of variables one must consider when estimating the value of an injury case is lengthy, but the lesson here is that everyone should use extreme caution when using AI to assign “value” to personal injury claims. AI’s ability to provide an accurate response is limited by the information it is provided. If the person who submits an inquiry to AI does not know the proper variables to include in a question, he or she is likely to receive an inaccurate answer. AI is also limited by what it has “learned” and what information is available when it formulates an answer. AI will undoubtedly make many aspects of our lives easier, but it has a long way to go before it can be relied upon to provide reliable legal advice.

CoPilot did acknowledge that “It’s important to consult with a personal injury attorney who can evaluate all aspects of the case…” Kuddos to CoPilot for acknowledging this important fact; however, CoPilot made a monumental error that could harm the consumer by offering to find a “reputable” personal injury attorney in Georgia. I responded, “Yes” (and am not including CoPilot’s response here because I do not feel it is appropriate to provide additional publicity to one of the firms that was recommended).

CoPilot recommended four personal injury law firms. One of those firms was highly reputable and I would not hesitate to hire them for my own case. However, one of the firms is being sued in a class action in the State Court of Gwinnett County, Georgia for violating O.C.G.A. § 33-24-53 (Unlawful Solicitation of Personal Injury Victims), O.C.G.A. § 16-14-4 (Racketeer Influenced and Corrupt Organizations Act), and O.C.G.A. § 10-1-391 (Fair Business Practices Act). The style of the case can be found on the Georgia Court of Appeals website. Why would CoPilot recommend a law firm that is facing such accusations?

All in all, if you are injured and curious about the value of your case, don’t trust AI to provide a value or to recommend a law firm. Do your own research. Talk to lawyers and search for credible information on law firm websites and YouTube Channels. Many reputable law firms provide accurate and free information if you simply look for it. For example, you can find advice on anything from finding the right lawyer for your case to What is a Neck Injury Worth to How Long Will My Workers Compensation Case Take?

The decisions one makes after a personal injury will greatly impact his or her finances. Those decisions should be made with the advice of a reputable and experienced lawyer. CoPilot and I agree on this basic principle. Call a good lawyer. It won’t hurt.

Common Myths about Personal Injury Attorneys

Blurry image of a man in a suit in the background pointing toward a collection of lawyer associated words in the foreground.

For those that have never needed a personal injury attorney, it might be easy to believe or perpetuate the common myths we hear about our profession.  Let’s address the common myths we hear and explain what really happens at a personal injury firm.

Myth #1: Lawyers Will Sue for Anything

Technically you can sue for anything, but good lawyers consider the cost and if there is a credible claim to be made. Most personal injury attorneys are fronting their own money and advancing case expenses for your case.  Attorneys will only bring claims they believe have merit or a reasonable chance for success.

Myth #2: Lawyers Take All The Money

Personal injury attorneys work on contingency, meaning they do not get paid unless their clients get paid.  Injury attorneys earn a percentage of the recovery, the amount settled for or awarded at trial.  The percentage amount varies based on the type of case and whether the case is in suit or not in suit. Most attorneys charge somewhere between 30% and 40% for the vast majority of injury cases.

Myth #3: Lawyers Chase Ambulances

Any reputable lawyer is not going to “chase down” cases however, there are some lawyers and even non-lawyers that try to find cases and then sell those cases to other lawyers.  Unfortunately, this does happen, but it is not fair to assign that stigma to all personal injury attorneys. Reputable attorneys do not find you in the emergency room or contact you after an injury.  If an attorney is approaching you about a car wreck offering his or her representation, please know that is unethical and against the law.  You do NOT want an attorney that chases you because that means they are so desperate for clients that they are willing to violate legal and ethical rules just to gets clients.

Myth #4: All Cases are Worth A Million Dollars

You don’t want a million-dollar injury case because if your case is worth that much, something life altering happened and you are terribly injured.    Each case is different and evaluated on many factors that include property damage, severity of injury, treatment, pain and suffering, missed work, and so on.  Personal injury attorneys try to get you what is fair and reasonable based on your unique case.

Myth #5: All Personal Injury Lawyers Try Cases

It is important to know that not all personal injury attorneys try cases.  Some attorneys will not even put cases in suit, meaning they won’t file a complaint or do litigation to get maximum value for your case.  These attorneys look to settle cases early and as fast as possible because that is their business model.  Injury victims should always ask about a lawyer’s trial experience before deciding whether to hire the lawyer.

Myth #6: Lawyers are Too Expensive

Some people believe you have to pay a retainer in order to hire an attorney.  That is not the case with personal injury attorneys.  Again, most injury lawyers work on a contingency fee basis, meaning they don’t get paid until they obtain a financial recovery for their client.  Contingency fees are variable as discussed in Myth #2 above; however, if an injury attorney wants to charge 45%-50% for a simple car wreck case, they are likely asking too much. Take your time and interview several attorneys, ask about their contingency fee, then choose the right one for you. 

Myth #7: Lawyers Drive Away Business from the State

This myth was generated by politicians. Any reputable business is going to have insurance. Attorneys will almost always give corporations and individuals the opportunity to settle their case within their insurance limits.  Good attorneys are not in the business of forcing people into bankruptcy or running businesses into the ground.  Of course, attorneys want to ensure their clients are fully compensated for their damages. However, forcing someone into bankruptcy doesn’t benefit anyone, not even the injured client because the full judgement is rarely collectible when the defendant is in bankruptcy.  Politicians might try to speak about a rare case to vilify someone or increase their political platform, but those politicians are usually speaking on behalf of the insurance industry and the lobbyists who fund their election campaigns.

Myth #8: My Lawyer Can Solve My Problems

An individual lawyer cannot solve all of your legal problems.  Attorneys, just like doctors, specialize.  For example, our firm can help you with personal injury matters such as a car wreck case, slip and fall, bicycle accident, medical malpractice, burn injuries and more, but we are not the firm to call when you are getting a divorce or find yourself in a criminal case.  Remember to seek out and ask for an attorney that has expertise in your area of need.

What’s the Deal with Domesticating Foreign Subpoenas?

Hand holding a pen about to sign a subpoena.

How to: domesticating a foreign subpoena in another state.

POV: It’s a dark and stormy Thursday afternoon and you’re a young, bright-eyed, paralegal working for the best personal injury firm that’s ever existed when the founding partner comes to you with a rather unique ask; conduct some research on how to domesticate a foreign subpoena in another state. He hands you one of the thickest books you’ve ever seen, and you accept this new challenge with genuine enthusiasm, although, you can’t help but notice the devious smile that slowly creeps across his face as he slips quietly back into his office. Your newfound enthusiasm is quickly replaced with dread. This formidable task grows all the more daunting as you clutch the 1,359-page book on Georgia’s Civil Procedure tightly against your chest and contemplate your life choices that have led up to this moment.

If you can relate in any way to the story above, then you have come to the right place. Welcome! As the young, bright-eyed, paralegal who was assigned the aforementioned task, and as a result is now an expert on the topic, I’m here to share my knowledge with the world!

While the thought of having a foreign subpoena for discovery (i.e., a deposition) domesticated in another state may seem daunting as first, the process is actually quite simple. Depending on which state the case is in and which state your witness is in, you may be able to rely on the Uniform Interstate Depositions and Discovery Act (UIDDA) for guidance which makes the process the same for the 30+ states that have adopted it.

The example scenario is as follows: you’re working on a case and having trouble tracking down a witness that you need to depose, a tale as old as time. After doing some digging, you discover that the witness has, since the time of filing the initial lawsuit, moved out-of-state to Tennessee. You take a deep breath and login to your trusty Westlaw account to embark on a journey where you’ll hopefully learn something new: how to domesticate and serve a foreign subpoena in Tennessee. Your research will likely lead you to Tennessee Code § 24-9-203 which states that “a party may submit a foreign subpoena to a clerk of courts in the county in which discovery is sought to be conducted in this state.” Simply put, once you’ve successfully obtained your subpoena from the Georgia court where your lawsuit is pending you will mail the subpoena, now file stamped, to the appropriate clerk of courts in the Tennessee county where the witness resides. From there, your successfully domesticated foreign subpoena can be served on your witness by the Sheriff or by a private process server who understands the rules of civil procedure in Tennessee.

If you have a case that resides in a state that has adopted the UIDDA, but a witness that resides in a state that hasn’t adopted the Act, the process will look a little different. Once you’ve put on your thinking cap, you’ll have to initiate this arduous process with an Order to Take Out of State Deposition, a Commission to Take Out of State Deposition, a Stipulation to Take Out of State Deposition, or a Letter Rogatory. Next, you will have to request that a subpoena be issued from the court in the state where your witness resides by either submitting an application, filing a petition, by providing documents to the court or having an attorney file a petition. After you’ve successfully jumped through all the necessary hoops your subpoena should be ready to be served! At this point, you will need to consult with the state in which your case originated and a process server to determine who is authorized to serve the subpoena. Suffice to say, the exact process will vary depending on which states are involved so it is always best to comply with an individual state’s process as closely as possible to ensure that your subpoena is successfully issued, domesticated, and served on your witness in a timely manner.

Pro tip: When in doubt, reach out! Contact the clerk of courts office in the county where you are trying to have your subpoena domesticated and pick their brains on how to comply with their state’s rules and regulations. So go forth and utilize your resources, work smarter not harder, and tell no one of your dastardly plans to become the smartest person in the room. Good luck!

Written By Paralegal Rachel Wilson

Preparing for a Consultation with a Georgia Personal Injury Lawyer

A man in a business suite touching the word legal advice in the foreground.

If you need to consult with a personal injury attorney in Georgia, there are some things you should know prior to meeting with the attorney. There are many fine personal injury attorneys in Georgia but you need to find the one that is the best attorney for your case. This begins with the initial consultation.

What Is a Lawyer Consultation?

Most personal injury consultations are free of charge. The vast majority of Georgia personal injury lawyers work on a contingency fee basis and will only get paid if you win your case.

Think of your initial meeting like an interview — you are interviewing the attorney and the attorney is interviewing you. A bad lawyer can kill your case so be sure you are comfortable with the lawyer’s skills and professional accomplishments before you agree to hire his or her firm. It is a huge red flag if the attorney sends an investigator or paralegal to meet with you during the initial consultation. Stay away from attorneys that don’t attend initial consultations because they are likely too busy to handle your case if they can’t make time for an initial consultation.

During your initial meeting, you will share details and talk about your accident or injury. The attorney should be listening carefully to determine whether they can help you, and whether you have a valid claim. When sitting face-to-face with the attorney, you can get a feel for who they are and how they might work. Don’t overlook this point because you are entrusting them with your case.

What to Expect During a Consultation with a Personal Injury Lawyer

During the consultation, you can expect to discuss the facts of your case, any evidence you may have, whether the facts of your case meet the legal requirements for a lawsuit, and your eligibility for any compensation. You should also discuss the steps involved in bringing a personal injury case as well as things you should and should not do in regards to your injury.

The Facts

An attorney will need to know the events that led to your accident or injury. Where you were, what you were doing, your relationship to the defendant, were you driving, were you a pedestrian, what sort of vehicles were involved, were there any warning signs of danger, was the floor wet, and many other facts that help create a picture of what happened. If you took notes immediately after your accident, this is one instance where they will be valuable.

Evidence

An attorney should not expect you to have every single bit of evidence at this stage in your case; however, do share with the attorney contact information for any witnesses, photos of the scene, police reports, medical records, and any other proof to support your case.

Legal Requirements

This is the part of the consultation where the attorney will assess whether the at-fault party should be required to pay you damages. If the facts of your case don’t meet the legal requirement to file a lawsuit, the attorney should let you know. At this stage, the attorney has only your version of the facts to go on, so you should answer all of their questions honestly and truthfully.

Compensation

If you have met the legal requirements for a lawsuit, during the consultation the lawyer will go over the types of compensation you may be awarded, either in a settlement or if you win your case at trial.

You should also discuss the importance of identifying all sources of insurance because the vast majority of defendants in Georgia personal injury cases do not have enough assets to pay a substantial judgment.

For Your Free Consultation, Contact Williams Elleby Howard & Easter

Our attorneys are here to help you figure out what to do next. If you have been injured in Georgia and have questions about the law and the facts of your case, contact Williams Elleby Howard & Easter to schedule a free consultation by calling 833-LEGALGA.

Georgia Assumption of Risk Doctrine

fault assumption risk liable Georgia

Under the classic assumption of risk doctrine, a defendant is not liable for harm caused if the plaintiff voluntarily and knowingly assumed the risk. Georgia courts have long accepted the doctrine of assumption of risk. Assumption of risk is an affirmative defense to liability, although Georgia courts will sometimes integrate assumption of risk into a comparative fault analysis.

The Court of Appeals of Georgia has held that a defendant may successfully assert assumption of risk as a defense when defendant shows that the plaintiff:

1. Had actual knowledge of the danger in question;
2. Understood and appreciated the risks associated with such danger; and
3. Voluntarily exposed himself or herself to those risks.

Examples of Assumption of Risk Being Applied in Georgia Courts

Georgia courts have accepted assumption of risk defenses in many types of personal injury cases, including premises liability and product liability cases. The cases highlighted below show how Georgia courts apply doctrine in different types of cases.

Teems v. Bates, 684 S.E.2d 662 (2009)

In this case, teenager Janna Teems was injured after falling off of the top of a car driven by her friend, Matthew Bates. Teems wanted to ride on top of the car for fun as Bates drove around in a parking lot, but Bates drove faster than Teems expected (10-15 mph) and fell from the car. She was seriously injured and required weeks of hospitalization.

Teems sued Bates for negligence, but the trial court found that Teems assumed the risk of harm and ruled in favor of Bates. The appeals court affirmed this decision, finding that:

“When a person knowingly and voluntarily takes a risk of physical injury the danger of which is so obvious that the act of taking such risk in and of itself amounts to a failure to exercise ordinary care for one’s own safety, that person cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of the other person.”

This case shows that when a plaintiff assumes a major risk, the assumption of risk doctrine will apply even when the defendant’s conduct was clearly negligent.

Landings Association, Inc. v. Williams, 728 S.E.2d 577 (2012)

This case shows how assumption of risk is applied in premises liability cases. In this case, 83-year-old Gwyneth Williams was killed by an alligator as she walked on a pathway along a man-made lagoon. Her family brought suit against the property owners. However, it was well-known in that area that alligators lived in the waters of the property. Moreover, the property owners warned residents in the area about the presence of the alligators. The Georgia Supreme Court found that although the property owners had a duty to keep the premise reasonably safe, that in this case Williams assumed the risk that an alligator could harm her.

Wilson v. Bicycle South, 915 F.2d 1503 (1990)

This product liability case was decided in the US Court of Appeals for the 11th Circuit, which is located in Atlanta. Although the case was decided in a federal court, Georgia state law was applied. The court determined that if a plaintiff voluntarily decides to use a product, despite knowing about a product’s defect and being aware of the danger the defect presents, they cannot recover in a product liability claim if the product harms them because they assumed the risk.

For More Information, Contact Williams Elleby Howard & Easter, Today

The attorneys at Williams Elleby Howard & Easter, are dedicated to helping personal injury victims with all types of personal injury claims, including auto accidents, “slip and fall,” premises liability, and product liability claims. If you would like more information or would like to discuss your case, call Williams Elleby Howard & Easter, today to schedule a free consultation at 833-LEGALGA.

Do All Personal Injury Claims End Up in Court?

personal injury claim court

Do All Personal Injury Claims End Up in Court?

Although it may seem like every personal injury claim ends up in court on TV or in movies, that is not the case in real life. In fact, roughly 95% of pending lawsuits settle. This means only one in 20 personal injury cases is tried before a judge or jury. Although most attorneys prepare for every case as if it is going to trial, the reality is that this preparation is often used as a means to obtain a favorable settlement.

Deciding Whether to Go to Trial

When cases do go to trial, it is usually because settlement efforts have been unsuccessful. In other situations, the victim wants to have their day in court for personal or political reasons. For example, if you are a victim of a products liability claim, you may want to go to trial to increase public awareness of a dangerous product.  Taking your case to court will help prevent future accidents and make the manufacturer or designer of the product alter their current practices.

Taking a case all the way to trial is extremely time-consuming and can be expensive. Depending on the accident, it can also be emotionally and even physically draining. Some victims want to avoid going to trial because they do not want to relive the experience again when they tell their story in front of a jury.

Victims should carefully consider the pros and cons of taking a case to trial. Your personal injury attorney can help you think through this decision.

Potential Negatives of Going to Trial

No matter how airtight your case may be, there is always a chance of obtaining a negative result when you go to trial. It is always a gamble when you walk into a courtroom. You could end up with everything you requested or nothing at all. There are other drawbacks to consider as well.

  • Delayed compensation. It can take months and even years to prepare a case adequately for trial. Victims may not be able to wait this long to address their financial needs after an accident. Settlements offer faster payments so victims can often get back on their financial feet earlier.
  • Appeal rights. When a case is heard in front of a judge or jury, there is almost always a right to appeal. This appeal process can drag out for additional months or years, further delaying compensation. There are no appeal rights in a settlement agreement. A settlement finalizes the case so you can move on. This is often very attractive to victims.
  • Cost of litigation. Victims who are not on a contingency fee arrangement with their attorneys face significant legal fees when they go to trial. Even those who are on contingent fee arrangement may often need to employ experts who will testify at trial. These costs are often the ultimate responsibility of the victim if he or she wins their case.

Deciding whether to have your day in court is a highly personal decision, and there are advantages and disadvantages that you need to consider for your particular lawsuit. Williams Elleby Howard & Easter will be able to evaluate your case and your unique situation to determine the potential outcome of your case. Contact us in Cobb County, Georgia at 833 – LEGALGA for more information.

The Importance of Gathering Witness Information Post-Accident

Several people kneeling down, tending to an unconscious woman laying on the concrete beside a bicycle tire with a helmet laying off to the side.

The Importance of Gathering Witness Information Post-Accident

If you’ve been involved in a car wreck, struck by a tractor-trailer, or had a slip and fall on someone else’s property, then you know how frenzied the scene is. Getting witness information is the last thing on your mind; however, if you are not physically impaired after the accident and have been treated for your injuries, it is critical you retrieve witness information from the scene.

Types of Witnesses

There are three types of witnesses in a personal injury case:

  • Pre-accident witnesses: Pre-accident witnesses saw the other driver speeding, or were in the facility when you fell. For example, these witnesses can be drivers, pedestrians, or employees
  • Event witnesses: Event witnesses saw the automobiles collide or your slip and fall
  • Post-accident witnesses: Post-accident witnesses include emergency personnel, doctors, and police officers who were at the scene following the crash or fall

How to Gather Witness Information

All you or a loved one has to do is ask a bystander/witness for their name and what they saw happen. Some people may be reluctant to give out their phone number to a stranger, but it doesn’t hurt to ask. Another avenue is to ensure that a police officer on the scene writes the witness’ information and statements in his report. However, if you can procure this information yourself, we suggest you do; police officers are busy, and their reports may not always include all relevant information. If none of this is possible, an experienced Georgia personal injury attorney can help track down witnesses or hire a private investigator to get their information. Keep in mind, though, that getting the information at the time of the accident increases your chances of obtaining reliable statements.
Witness information is recorded in sworn statements through police reports, affidavits, or audio or visual recordings. It includes what they saw at the time of the accident, their opinions, and anything else relevant to your case. You want to ensure that their statements are recorded at the time of the accident or as close to it as possible.

How Witness Information Is Used

Witness information helps establish fault in an accident and is a deciding factor in the amount of compensation you may be awarded. It may be years before your case is tried in court and  individuals’ memories fade over time, or they may have trouble recalling certain events. Recorded witness statements and information are used in court to help refresh witnesses’ memories, to impeach them if they are caught lying about a fact, or can be used if a witness passes away before trial.

Contact Us

If you or a loved one were involved in a car accident or slip and fall, please know the Williams Elleby Howard & Easter are here to help you. Should you have any questions, don’t hesitate to call us at 833-LEGALGA. Our consultations are free, and you are under no obligation to hire us to assist you. We want you to fully understand your rights so you can make an informed decision and do what is best for your case.

How Does a Contingency Fee System Work?

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Under a contingency fee arrangement, clients do not pay their attorneys unless they win their case. For some arrangements, clients may still need to pay expenses and court costs, but in many arrangements the law firm will advance all legal costs until a case is settled or won. Contingency fees are typically seen in personal injury cases. Car accident, premises liability, defective product, and malpractice claims are frequently conducted on a contingency fee basis. Other types of claims may be handled on a contingency basis in certain circumstances. However, contingency fees are never available for criminal law, immigration, or family law cases.

What is a typical contingency fee?

A typical contingency fee ranges from 33-40% of the total amount won by a plaintiff. However, fees can vary widely based on the particular facts of a case. The time an attorney expects to work, the amount of the potential award, and the overall strength of a case are all factors that the attorney will need to consider.

Benefits of a contingency fee arrangement:

  • Contingency fee arrangements give access to justice for plaintiffs that are unable to afford to pay an hourly rate or flat fee to their attorney upfront.
  • Because a law firm knows it will only get paid if it wins your case, it will only agree to represent you if the firm’s attorneys feel very strongly that you can win. Therefore, if a firm agrees to represent you on a contingency basis, you can rest easy knowing that your attorney fully believes in the validity of your case.

Detriments of a contingency fee arrangement:

  • A fair contingency fee is based on the law firm’s best-guess as to what is likely to happen in a case.  But, sometimes outcomes can be unexpected. For instance, if an attorney can settle a case more quickly than anticipated, he may gain a large contingency fee for a mere few hours of work. In other circumstances, a case can drag on far longer than an attorney expects and end up costing the attorney far more than the contingency fee was worth. Both clients and attorneys thus take on some risk that a contingency fee may, in hindsight, seem unfair.
  • Contingency fees can sometimes cost more in the end. With these arrangements, attorneys are absorbing the risk that their client may lose or be unable to collect their judgment. Despite a high likelihood of success in contingency fee cases, every once in a while, an attorney puts forth time and energy into a case and ends up getting paid nothing. To offset these losses, law firms need to charge more for contingency fee cases.
If you have a potential claim, you should consider whether a contingency fee is the best option for you. At Williams Elleby Howard & Easter, we offer services on a contingency fee basis and would be happy to discuss this and other options with you if you would like to discuss your case. For most cases, we will advance all legal fee costs until your case is settled. Call Williams Elleby Howard & Easter today at 833-LEGALGA for a free consultation.

How Do I Prepare for My Deposition?

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What is a Deposition?

A deposition is a discovery tool that attorneys use to obtain the sworn testimony of parties and witnesses prior to the trial of a civil case. Depositions are an excellent time for lawyers to inquire about facts that may be relevant to the lawsuit. Lawyers also use depositions to evaluate how a party or witness will appear before a jury so they can better estimate the settlement value of a case. There is no judge or jury present during a deposition, only the lawyers and a court reporter and/or videographer. If a case goes to trial, depositions can be used in cross-examination of a witness if the trial testimony differs from the testimony given at the time of the deposition. Without question, depositions are the most important event that occurs during a civil lawsuit except the trial.

How Do I Prepare For My Deposition?

You have been summoned for a deposition. What now? If you are a party to the case, your deposition can go a long way in assisting your lawyer in handling the case either by way of settlement or trial. What you do at the deposition can help or hurt you, depending on your attitude, truthfulness, and appearance. Therefore, it is critical to prepare for your deposition. Here are a few recommendations that may help you be an effective witness:

1. Physical Appearance For A Deposition:

It is important that you make a good impression upon opposing counsel. You should appear at the deposition dressed as you would expect to dress if you were going to Court to appear before the judge and jury. After all, this is the first opportunity opposing counsel has to see you. Wear neat and clean clothing and be prepared to show any and all injuries which you suffered. If this presents a potentially embarrassing situation, tell your lawyer in advance and he can take care of it.

2. How To Conduct Yourself At A Deposition:

• Treat all persons in the deposition with respect and courtesy even if they do not return the favor. A famous trial lawyer once said, “Anger is the blood of the battle in Court.” Although you may feel anger, you must control it and never lash out at opposing counsel.

• You must always tell the truth no matter the costs but it is important that you do not get trapped into saying something that is not true. Always listen to each question carefully and be sure you understand the question before you answer. If you do not understand a question, ask the opposing lawyer to repeat it or rephrase it so you do understand. When you do understand a question, answer it honestly and in a straightforward manner. If you don’t know the answer, say you don’t know. Never guess at an answer and remember honestly is always the best policy. If you tell the truth and don’t guess, you will be fine.

• Give audible answers. The court reporter will take down all of the questions asked during a deposition as well as your answers and you must speak clearly to make sure the court reporter gets everything correct.

• Avoid joking or wisecracks. Lawsuits are serious matters and jokes have no place is a deposition.

• Never volunteer information. Sometimes when witnesses get nervous they get “diarrhea of the mouth.” They just start talking and inevitably say something they don’t really mean that can be taken out of context and used against them later in the lawsuit. The lawyer taking the deposition has the responsibility to ask proper questions to obtain the information he or she seeks. Let them do their job and only answer the question they ask.

• Listen to your lawyer. Sometimes your lawyer may object to a question. If your lawyer objects, stop speaking immediately, listen to his objection, and follow his instructions.

• Wait until the opposing lawyer finishes his or her question before you answer. Do not anticipate what the question is before the lawyer has finished asking the question. Do not start nodding your head or answering until the question is complete. This is a common mistake in depositions because it happens every day in normal conversation. A deposition is not a normal conversation and you should not treat it as such.

• Be careful of questions in which the attorney puts words in your mouth. Attorneys often ask leading questions so they can phrase the answer. For example, “You had pain in your neck prior to this wreck, isn’t that right?” This is a leading question that calls for a “yes” or “no” answer. Leading questions are much different than a question that simply asks “Tell me about any pain you experience in the year prior to the wreck.” The difference is that the attorney is suggesting the answer in the leading question and asking you to agree with it. Never agree to a leading question unless you fully agree with what the attorney says.

• Beware of questions involving distances and time. If you are making an estimate, be sure that everyone understands you are making an estimate. People are notoriously bad at giving distances and times. If you do not know a time or distance, say so. Never guess.

3. Your Deposition Is All About You:

The most important aspect of your deposition is you. If you are fair, honest, and professional in giving your deposition testimony, you will be taking a tremendous stride towards a satisfactory completion of your case.

Premises lawyer Joel Williams hopes this information will be helpful to you if you are ever required to give a deposition. Remember, a deposition is serious matter and you should always meet with your lawyer to prepare for your deposition. Review any documents related to your case and discuss what questions may be asked with your lawyer. Your lawyer should not tell you what to say but he or she may be able to help you phrase answers to anticipated questions so your answers will be more effective and accurate. If your lawyer encourages you to tell anything but the truth, fire him immediately and hire someone who has the proper ethical compass required of legal professionals.