OVER 400 Legal Answers to Frequently Asked Questions to a Variety of California Injury Issues and Legal Problems Associated with California Accidents
What is my case worth? What should I do after a bicycle accident? My car's brakes didn't function properly, do I have a case? Should I sign the insurance company's proposal? Some of your questions may have been answered already on Mark Blane's website. However, San Diego county accidents happen all the time, and all sorts of different questions about different injury scenarios can be raised by a person who is injured. As a result, this personal injury website is dedicated to answering your frequently asked questions about a variety of injuries, your legal rights, and what procedures you should follow. Just browse our frequently asked questions (FAQ) section (below) and look them up. If you have other or more specific questions, just send an email (Contact Us) and you will receive a reply without delay!
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SUMMARY JUDGMENT MOTION: What is a summary judgment motion , and why is it relevant to my California personal injury case?A summary judgment motion is a legal motion that can be filed by either the plaintiff or defendant in a civil case (after a lawsuit has been filed); with civil injury cases, the defense usually uses this motion as their "weapon of choice" to claim there "is no case to be decided by a fact finder, or jury." Meaning that the injured party has no legal claim because of "x, y, z," or more specifically, the injured party has shown no issue of disputed material fact.
For example, if someone took a drug that caused them injury, and the injured person had no real evidence to show the drug caused him or her injury, then a defense lawyer would file the summary judgment motion asking the judge to dismiss the claim because the injured person has no sufficient evidence to even base a claim to be decided by a jury or judge. Thus, there is no real "causation of injury."
NEGLIGENCE: What is the legal term negligence and why is it important in my San Diego personal injury case?
Negligence is a legal term which means a person or entity failed to use reasonable care which led to some other person being harmed.
You need four elements under California law in order to have a "negligence" against an at-fault party. They are as follows:
1. Duty owed by the at-fault party; the at-fault party owed a duty of due care to the injured party (like keeping floors free of debris so customers do not slip and fall, etc.);
2. Breach of that Duty; the at-fault party failed to keep the duty of due care;
3. Causation of Damages; the injured party, because of the breach by the at-fault party, was caused some harm (bodily injuries); see also proximate cause;
4. Actual Damages; the injured party suffered some harm (medical bills, and pain and suffering).
Remember, negligence is an "all or nothing rule" or "four part punch" means means you need all four elements above before you have legal negligence, and thus, a legal claim against an at-fault person or entity.
PROXIMATE CAUSE: What the heck is proximate cause and why is it important in a California personal injury case???
Proximate Cause is a legal term that refers to an event sufficiently related to a legally recognizable personal injury to be held the cause of that personal injury. California uses two types of causation in the law, cause-in-fact and proximate (or legal) cause (foreseeability).
Cause-in-fact is determined by the "but-for" test: but for the action, the result would not have happened. For example, but for the person falling asleep behind the wheel, the accident would not have occurred.
Proximate Cause (Foreseeability): The most common test of proximate cause under the American legal system and, of course, in California, is foreseeability. It determines if the harm resulting from an action was reasonably able to be predicted...it is usually used in respect to the type of harm. It is foreseeable that throwing a baseball at someone's head could cause the head injury or brain damage for example.
You need to have proximate cause in your personal injury case because without it you do not have negligence - proximate cause (causation) is one element of negligence and you need it in order to have a negligence legal claim. Thus, it is very very important to your California injury case!!
LEGAL ANSWERS: Can you syndicate your legal answers to various legal questions from real people you have answered from avvo.com?
Yes. Here it is:
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E-MAIL CONTACT: What happens if I submit my San Diego car crash case to you via email or through your website contact form?
Once we receive your email submission, we will reply by phone, usually within a few minutes, or if it is a weekend, we do our best to respond within 24 hours. If you contact us after business hours, we will call you the following morning to follow up with you directly. We will provide you with a free and private consultation with absolutely no obligation. While the information you submit is treated as confidential, please note that no attorney-client relationship exists until a retainer agreement is signed between my law office and you.
JURY TRIAL: Does every California personal injury case go to a California jury trial?
The vast majority of them settle prior to a California jury trial. You have to remember that most injury cases that attorneys retain usually have good liability, and if a car accident, more than likely high property damage or evidence that shows "causation of injury." This means there was either plenty of bio-mechanical force to cause injury and the property damage repair (or photos) support this contention. Since most cases are good cases, then it is those cases that usually settle just short of trial, or well before a California law suit is even necessary.
DISCOVERY: What is "Discovery" in my California law suit?
Discovery in civil cases (like a California personal injury case) is a process where both sides, plaintiff (person hurt), and the defendant (person defending the injury claim), can obtain information from each other to help not only build a case or defense, but also to prepare evidence for a jury trial, if necessary.
Discovery can take several forms in California, and is governed by the California Rules of Civil Procedure. It can include the following forms:
- 1. Depositions (sworn oral testimony taken before trial);
- 2. Production of Documents request (making documents or items available for copying, including electronic information);
- 3. Medical examinations (also known as an IME, or Independent Medical Exam);
- 4. Requests for admission (asking the other party to agree to certain facts in writing);
- 5. Form Interrogatories (questions in a pre-drafted format, and only the ones that are checked need to be answered);
- 6. Special Interrogatories (questions that go beyond the Form Interrogatories where specialized or very specific information is requested);
Privileged information or communication (like attorney client communication) is protected from discovery, the attorney's work product in advocating his or her legal case, and trial preparation materials. Discovery is also limited to matters relevant to the specific case at hand, and lawyers are ethically bound to conduct discovery honestly and diligently (no games).
PERSONAL INJURY DAMAGES: In my California Personal Injury case, what is the difference between "economic" and "non-economic" damages?"Economic Damages" refers to your "out-of-pocket" damages like wage loss, or money you spent on co-pays to attend medical care. Also, this is known as "special damages." "Non-economic damages" refers to your "pain and suffering." This is also known as "general damages."
Mark C. Blane is a San Diego Personal Injury Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm dedicated to representing families of people injured in personal injury accidents including car accidents, slip and falls, dog bites, product defects, and the like. If you or a loved one has been killed or injured in an accident in San Diego, or Southern California, due to the negligence of another, please order your free copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information that will help you protect your legal rights and it normally sells for $16.95. However, it is free to all California residents, or those injured in an California accident.
RECORDED STATEMENT: Should I give a Recorded Statement to the insurance Claims Adjuster in my California Personal Injury case?
No. Unless, your case is so minor, that your car sustained virtually no property damage, or you treated once or twice with your doctor and you are okay medically speaking. Outside of this, you should never give a recorded statement without the presence of legal counsel. Most of the time, your statement will be used to minimize your injury claim. Remember, the insurance companies are running a business (which means "for profit"). Thus, they do not want to have to pay out full value on a claim unless they are forced to take responsibility to do so.
PERSONAL INJURY ATTORNEY: Does my California Personal Injury case need an attorney?
The simple truth is, not every injury case will need a lawyer. This is mostly true of cases where there are minor injuries or extremely low property damage, such as a car versus car accident. Sometimes after an accident resulting in an injury, a person will feel sore, go to their doctor maybe once or twice and, eventually, get better. Sometimes, a person may even attend a few physical therapy sessions. In those cases, it may be better for the person to settle their case on their own directly with the insurance company, since using an attorney will create attorneys’ fees and costs. However, no matter how a minor an accident or injury is, you should seek good legal counsel to help make an informed decision of using an attorney or not. Obtain a FREE copy of my book "The 10 Secrets with Your Injury Case" available on this website for more information.
SAN DIEGO PERSONAL INJURY LAWYER: If I get into a California car accident, and I move to another state, can your law firm still represent me?
Yes. Since the accident happened here in California, your claim or eventual lawsuit would take "jurisdiction" in this State (in the city/county of where the accident happened). I am duly licensed to practice law in the State of California.
CONTINGENCY FEE: What is a Contingency Fee Agreement?
It is an attorney fee arrangement where a client does not pay an attorney for his or her legal services until time of settlement. It is normally used in a personal injury case. Thus, if there is no recovery, then generally there is no payment to the attorney who worked the case on a contingency fee agreement.
CONTINGENCY FEE: Do Contingency Fee Agreements need to be in writing in California?
Yes, it is required under California law. Also, you should be given a copy of the retainer agreement immediately after you sign one by your attorney.
LAWSUIT: What is a Personal Injury case?
It is any injury sustained by anyone due to the negligence of another (a third party).
LEGAL STATUS: Can a lawful permanent resident, OR someone illegally present in the United States, or in California, have a personal injury case?
Yes, they can. California law protects anyone (person) injured due to the negligence of another.
FREE LEGAL CONSULTATION: Do you offer free and private legal consultations for a Personal Injury matter?
Yes, I do. I am available in person, via telephone, or computer (Skype, I Chat); and I can also meet injured clients in their homes (house calls), or where ever they need to meet me.
PERSONAL INJURY ATTORNEY: What is Attorney-Client Privilege?
It is anything that is told to an attorney, regardless if an attorney-client relationship later forms or does not form, is deemed private and confidential by the attorney. This include any legal consultation whether it is for a personal injury consult or some other matter.
LEGAL DISCOUNT: Do you offer legal discounts to your Contingency Fee Agreements?
Yes. I generally offer legal discounts to any friend or family member injured due to the negligence of someone else; I also offer this to any returning client as a courtesy.
STATUTE OF LIMITATIONS: What is the Statute of Limitations for a California Personal Injury (any injury produced by the negligence of another person or entity)?
It is 2 years for most injuries; please note the following:
If you are injured in California due to the negligence of another person, who is a private party, not a public entity, then you have up to two years from the date of accident to either settle your case or file a lawsuit to protect your legal rights to any potential monetary recovery against that person directly. If you do not, you will forever lose your legal rights to pursue an action in court.
Now, if you were injured by a government entity, like a city for example, then you have a six month statute of limitations to file your claim against the city. If your claim is then denied by the city, you generally have six more months from the date your claim was denied to file your lawsuit agains the city.
Finally, if you were injured on the job due to some person or some entity connected exclusively with your employer, then you have up to one year to file your injury claim to begin the process for your workers compensation benefits. If you were injured on the job by a third party not connected with your employer, you still have a one-year statute of limitations to file your workers compensation and then two years to file against a private third party, and six months to file against a government third party.
As you can see, different time frames apply depending on the type of your accident; you should consult an experienced California Personal Injury Attorney as soon as possible in order to protect your statute of limitations.
JURY TRIAL: If my California Personal Injury case goes to jury trial, how many jury members must be on my side in order to win my case?
In California, we have a 12 member jury for both civil and criminal cases. Since a California personal injury claim is considered a civil remedy, only a majority (9 of the 12 jury members) of jury members must agree with you and your claims in order to win.
(As an aside, in a California criminal trial, 12 out of 12 jury members must agree).