Personal Injury

You should know what to expect if your personal injury case goes to trial in California.

Personal injury cases frequently settle before ever getting in front of a judge, but occasionally neither side is willing to budge, and the case has to go to trial.

If this happens, don't worry. Your attorney will be with you every step of the way, working to build your case so that you can be fairly compensated.

There are a few things you should expect leading up to and at the trial of your personal injury case.

First, your personal injury attorney will have to document the evidence that proves the other party was at fault. He will need your statement and any medical records, police reports, photographs and notes that you have, along with the names of any possible witnesses.

Then, both sides will start the "discovery" process. That means your personal injury attorney and the attorneys for the insurance company will share whatever information they have, including documents. They also will likely take depositions, formal on-the-record sworn statements of what each witness knows.

Discovery and evidence

Be prepared this can be a tough experience. At depositions, the insurance company attorneys will cross-examine you, try to trip you up, maybe even accuse you of lying. Their goal is to get a statement they can use against you. Make sure your personal injury attorney knows all the facts, even if you aren't sure it matters, before you begin. If you lie in the deposition, about anything, it very likely will come out.

Another tactic to keep in mind as the insurance company prepares for a personal injury trial: The company may hire private investigators to watch you.

There are hundreds of private investigation agencies in California that specialize in insurance defense work and surveillance. Their job is to follow injured people for eight to 10 hours a day, using video cameras to record them as they go about their daily activities at work, at home and anywhere else.

For example, if your accident left you with a bad back injury that keeps you from working, but the private investigators record you playing in the yard with your children, that tape could have a serious negative effect on your personal injury case.

Do not perform any activities your doctor has warned you to avoid. He may give you medication that makes you feel much better for a day or two, as if you can do anything. Don't. Period.

Personal injury attorney's job

Meanwhile, your personal injury attorney also will be working to gather evidence to use in the trial. He has to prove the other party was substantially at fault to be successful, so he will examine the physical evidence from the accident, such as photographs and measurements, and review witness statements, and he may hire experts to prove specific points, such as vehicle speeds at impact in a car crash.

He also will gather information about what effects the injury has had on you. He will need to know to the cost of medical treatment for your personal injury, the amount of work you missed, and how much that cost in lost wages, and whether your injuries will leave you with a permanent disability or require future treatment.

The trial

The trial will begin with jury selection, in which your personal injury attorney and the insurance company attorneys will try to select between six and twelve people to hear the case.

You've probably seen trials on television, so you already have an idea of how yours will proceed. Attorneys for both sides will get a chance to make opening arguments, then each will put on a case. Your personal injury attorney will call witnesses, which the defense will cross-examine, and vice versa.

Each side also will give closing arguments after the respective cases have been presented.

Once they are done, the jury will decide who was right, based on what is called a "preponderance of evidence." That means the jury votes for whichever side compiled the most convincing evidence.

If the jurors find for you, they can choose to award you actual damages, to compensate for any medical expenses and lost wages, and non-economic damages for pain and suffering. They may also award punitive damages, if they believe the defendant acted with malice.

It is not likely that you will receive the actual amount the jury awards. After the trial, your personal injury attorney can negotiate with the insurance company to reach a final settlement.