Law Blog

Should you become injured or harmed in some way due to the negligence or actions of another, you may be legally entitled to compensation from the responsible party. Unfortunately, this often requires the filing of a personal injury lawsuit. These lawsuits take time and typically go through a number of stages before winding up in court.

Here’s what typically happens at each stage of a personal injury case before it finally lands in civil court:

Seek Medical Care

After being hurt in an accident, you need to immediately seek medical treatment. This comes first before anything else. Go right to the hospital or make sure you’re seen by a doctor. You need to do this for your health and wellbeing. If you wait to see a doctor long after the accident, the insurance company and the jury might simply assume that your injuries weren’t that serious.

Find a Good Attorney

Unless your injuries are fairly minor, you will need to find yourself a lawyer. You should do this as soon as you can after being injured. Settling a small personal injury claim by yourself may not be a problem, although legal representation can be helpful even for small claims. However, if you suffered substantial injuries and/or other losses you will definitely need a good lawyer by your side to handle your personal injury claim.

How do you know if your claim is big enough to warrant an attorney? Generally speaking, you really should hire an attorney if the accident caused a broken bone, forced you to miss work for longer than a couple of days, and/or your medical bills are over $2,000.

Before hiring an attorney, you should speak to several over the phone before meeting with them in person. Once you’ve chosen the lawyer you have the most confidence in, you will be asked to sign the fee agreement before he/she can begin handling your case.

Claim is Investigated by Your Attorney

Your lawyer will first want to thoroughly investigate your claim, which will start with them asking you all sorts of questions. You will be asked about your background, to explain what happened in the accident, the extent of your injuries and the medical treatment you received. Your attorney will make sure he/she finds out everything you know so there are no surprises down the road. It’s important that you provide every last detail when answering all questions.

Next, your lawyer will seek to obtain all your medical records, including bills that relate to the injuries suffered in the accident. He/she will likely request all medical records involving any treatments you’ve ever received related to the medical condition in question. This could take several months.

Once your lawyer obtains all your medical records, he/she will review them all to determine whether you have a case. If your lawyer believes that you don’t have a case, you’ll probably be notified as soon as this determination is made.

Your Attorney Weighs the Options

If your personal injury claim is smaller than most, it could be settled before you even have to file a lawsuit. If your attorney believes that they can get your case settled, they will go ahead and make a demand on the opposing side’s lawyer or on their insurance company.

If not, your lawyer will have no choice but to file a lawsuit. If you’ve been permanently injured or impaired, it is very unlikely that your attorney would settle the case before filing a lawsuit. 

Also, a good attorney would never make a demand until the victim has recovered to the point of maximum medical improvement (MMI). This is when the victim has completed their treatment and recovered to the point that no further improvement is possible. Until the victim reaches MMI, his/her attorney has no idea what they are entitled to in terms of compensation.

Any good attorney would also wait until MMI before filing a lawsuit because if the victim has not yet reached MMI when the case goes to court, the jury award may not be sufficient.

Even though it could take months or even years before the victim reaches MMI, a good attorney will wait as long as the victim can afford to financially. However, if the victim needs the money, their lawyer would file the lawsuit as soon as possible.

Filing the Lawsuit

Once the lawsuit is filed, the clock starts ticking down on when the case would be set for trial. Each state has its own pretrial procedures, but it typically takes one or two years before the trial would start in a personal injury case. There are legal time limits in each state for filing a lawsuit, which are determined by the statute of limitations.

Discovery

Discovery is the process whereby each side investigates the other side’s legal claims and how they plan on defending their case. Each side requests documents from the opposing side as well as answers to their questions. They also take depositions of important witnesses, usually starting with the plaintiff (victim) and the defendant in the case. Discovery can take up to a year since it depends on how complex the case is and the deadlines set by the court.

Settlement Discussions

When the discovery process comes to an end, lawyers on both sides typically start discussing a settlement. Often times, they can reach a settlement through these discussions, but sometimes they agree to mediation. This is a process whereby both parties and their attorneys go before a mediator to present their case in an attempt to reach a settlement

Going to Trial

Mediation is often effective in reaching a settlement. But if not, a trial date is set for hearing arguments before a judge and jury. Personal injury trials can be over in just one day, or last up to a week or longer. However, in states where they only hold trials in half-day morning sessions, the trial can last much longer. While this doubles how long trials last, it gives lawyers and judges time to get other work done during afternoon hours.

Regarding this timeline, although a lawsuit may be set for trial on a specific date, that does not necessarily mean that the case will actually go to trial on the scheduled date. Judges have very busy schedules, so it’s not unusual for trials to be delayed due to rescheduling. If this happens in your case, do not jump to the conclusion that the lawyers are deliberately dragging things out or that your case is in jeopardy. Trial dates are cancelled all the time, and often for reasons that seem to make no sense.

O'Connor, Runckel & O'Malley LLP is a personal injury law firm serving the greater San Francisco Bay Area. Our attorneys represent clients in a wide array of serious personal injury claims.

The partners at O'Connor, Runckel & O'Malley have more than 50 years of experience protecting the rights of victims. We have successfully negotiated thousands of cases and have tried and presided over more than 250 jury trials. Our experience and courtroom skills are unparalleled. Let us put this experience, knowledge and expertise to work for you.

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The statute of limitations states how much time you have to file a lawsuit if you’ve been wronged. The law requires most lawsuits to be filed within a specified time frame. Generally speaking, once the statute of limitation passes, your claim is no longer legally valid.

The length of time you have to file a lawsuit depends on which type of legal claim you’re making.

Personal Injury Claims

If you’re making a personal injury claim, you have a full 2 years from the date you were injured to file your lawsuit. However, if you did not realize you were injured right away, then you are given 1 year from the date you discovered your injury.

Claims Against the Government

If you’re making a claim against a governmental agency, you are allowed 6 months, or for certain types of cases, 1 year of when the incident occurred to file your claim with that agency. If the agency denies your claim, you can file a lawsuit in court. However, there are certain limits on when this must be done. Please read the information below on Claims Against Governmental Agencies, then read the chart below on the laws regarding statute of limitations.

Claims Against Governmental Agencies

If you intend to sue a governmental agency, you are required to file an “administrative claim” with that particular governmental agency or office before you actually file your lawsuit in court. The government has a special form that must be used when filing the claim.

• If this is a personal property damage claim or personal injury claim, you have a 6-month window for filing your administrative claim from the date of the damage or injury. However, there are a number of exceptions to this, which you can read about in California Government Code section 905 and section 911.2 plus it would be in your best interests to speak to an attorney.

Once your claim has been filed with the proper governmental office or agency, they must respond in writing within 45 days. If they respond by denying your claim, you are allowed 6 months from the date you received the denial (in the mail or via personal delivery) to file your lawsuit in court. If you do not receive a denial letter, you’re allowed 2 years from the day of the occurrence to file your lawsuit.

But you cannot rely on having a full 2 years to file your lawsuit because the statute of limitations regarding governmental claims is quite complicated. Speak to an attorney if there is any doubt in your mind about how long you actually have to get your lawsuit filed. The Law Firm of O’Connor, Runckel and O’Malley will provide you with a free consultation and may even be willing to represent you on your case.

What if the statute of limitations is tolled?

There are times when the statute of limitations gets tolled (suspended) for a period of time before it starts running again. In cases in which the defendant is in prison, a minor, legally insane, or out of state, tolling may occur. When the justification for the tolling is over, (when the defendant is released from prison, turns 18, is declared legally sane, comes back to California), the statute of limitations begins running again.

Cases in which tolling is an issue are very complicated, so it is highly recommended that you speak with an experienced attorney.

IMPORTANT NOTE: Make sure you review and fully understand the laws that pertain to your specific issue since there may be other more applicable laws pertaining to the facts of your case or even exceptions. Speak to an attorney to ensure that you have a full understanding of the statute of limitations that pertains to your particular case.

O’Connor, Runckel & O’Malley LLP is a highly experienced personal injury law firm that serves the people of the greater San Francisco Bay Area. Our lawyers represent clients in many different types of personal injury claims.

The law partners at O'Connor, Runckel & O'Malley have over 50 years of experience representing victims and protecting their rights. We take pride in having negotiated very generous settlements on thousands of cases while having presided over and tried over 250 cases before juries. Our vast experience and courtroom tactics are unparalleled. We can put our knowledge, experience and tactics to work to see that you prevail in your case.

O'Connor, Runckel and O'Malley LLP would like to announce our 2019 law school scholarship recipient, Kristina Nakao. Kristina received her Political Science B.A., Magna Cum Laude, from the University of California, Los Angeles. Upon graduation, she worked as a Legal Assistant at a family law firm assisting in dissolution matters. Kristina is committed to serving the Asian and Pacific Islander community and is a volunteer with the Legal Aid Foundation of Los Angeles. Kristina is currently a first year law student at the University of San Diego School of Law.

We look forward to seeing Kristina succeed in her upcoming years at the University of San Diego School of Law.

SAN FRANCISCO, CA – The family of the driver who lost his life in a Santa Clara County car crash filed a lawsuit against Tesla on Wednesday. The lawsuit claims that Tesla is beta testing autopilot technology on open roadways in California.

The man who was killed was riding in his Tesla, which was on autopilot at the time of the crash. His family is suing the car manufacturer and others for wrongful death.

The lawsuit is not only against Tesla, but it could also include subcontractors who helped design and build the autopilot system on Tesla’s Model X. 

Walter Huang was killed in March 2018 when his 2017 Tesla Model X smashed into a barrier on Hwy.101 in the city of Mountain View while it was on autopilot. 

His grieving wife Sevonne Huang told the press that this Tesla was her husband’s dream car.

“I gave the car to him for his birthday,” she said.

The family is convinced that the autopilot system is defective and probably the cause of Huang’s death.

Mark Fong, the family’s lawyer, said, “The car moved out of a safe lane, headed directly towards a solid concrete barrier while accelerating nearly 10 miles an hour in 3 seconds.”

Family members claim that Huang complained about the car constantly veering towards the same barrier at the very same location where the crash occurred. They also said that he took his car to the dealership a number of times to tell them about the malfunctioning autopilot.

The lawsuit is being filed on the grounds of defective product design along with intentional misrepresentation.

The company released a statement soon after the crash that said, “The driver took no evasive action even though he had a 5-second view of the divider before crashing into it.” The company went on to say, “Mr. Huang had received both visual and audible hands-on warnings earlier while driving and his hands were not on the steering wheel for a full 6 seconds before colliding into the barrier.”

Attorney Doris Cheng said, “Attempting to put the blame on Mr. Huang by suggesting that it was up to him to figure out what was wrong with his Tesla, is very unfair.”

The family also filed a lawsuit against the State of California, claiming that the highway median had no protective crash guard, which could have possibly prevented the death.

The lawsuit is for monetary damages, as yet unspecified.

Huang’s wife said, “I’m doing this so that other families don’t suffer through the same experience.”

The NTSB has not yet released the final report of its investigation into the accident. When asked, a Tesla representative declined to comment on the lawsuit.

A number of other Tesla drivers have lodged complaints and filed lawsuits against Tesla for autopilot errors.

The autopilot feature is one of Tesla’s most popular features because it is supposed to take over other functions, like steering, braking, changing lanes and speed.

Last year a Tesla driver whose car was on autopilot fell asleep while the car kept driving all on its own. Eventually CHP officers boxed the Tesla in with their cars, slowing it down until it stopped. They then arrested the driver when he couldn’t pass the field sobriety test.

Published on behalf of O'Connor, Runckel & O'Malley LLP

According to the California Highway Patrol, there may be as much as a 70% increase in DUI arrests in marijuana-related traffic accidents. Last year they released 2017 stats for the CHP Golden Gate District : 

For All of 2017: 

• DUI arrests just for using cannabis: 197
• DUI arrests for both cannabis and alcohol: 183
• Traffic collision causing property damage plus a DUI arrest for just cannabis use: 22
• Traffic collisions causing an injury plus a DUI arrest for just cannabis use: 7
• Traffic collisions causing a death and a DUI arrest for just cannabis use: 0
• When alcohol is combined with cannabis, injury collisions in 2017 rose to 24 and fatal collisions were at 7

From January to mid-April of 2018:

• DUI arrests just for cannabis: 87
• DUI arrests for both cannabis and alcohol: 60
• Traffic collision causing property damage plus a DUI arrest for just cannabis use: 9
• Traffic collisions causing an injury plus a DUI arrest for just cannabis use: 7
• Traffic collisions causing a death and a DUI arrest for just cannabis use: 0
• When alcohol is combined with cannabis, injury collisions were at 4 and fatal collisions were at 1

The CHP began keeping track of incidents in which drivers were stopped for erratic driving and the officer detected marijuana due to drug paraphernalia being found or a passenger was stoned. In these cases there was no DUI arrest. Through April 2018 that number was 3,754.

Marijuana-related traffic accidents have been getting a lot of attention in the news these past few years since 9 states plus the District of Columbia started legalizing the recreational use of cannabis. These states include: Colorado, Washington, California, Oregon, Alaska, Vermont, Massachusetts, Maine and Nevada.

Controversy still surrounds the discussion on exactly what a “marijuana-related accident” is because law enforcement in these states hasn’t yet completely defined the problem. The controversy began in 2016, which was 4 years after Colorado legalized the recreational use of pot, one of two states to do so at the time. Gary Johnson, who was running for President as the Libertarian candidate said, “’Marijuana-related’ hospital visits, fatal traffic accidents and school suspensions in Colorado have ‘not gone up significantly’ since the state legalized marijuana.”

Several official sources immediately refuted that claim, showing that there had been a huge rise in those exact problems since the drug had been legalized. The issue is that there is limited data, which makes it utterly impossible to know precisely which of these incidents were caused directly by the use of marijuana. ProCon.org explained it this way, “Unlike with alcohol use, when you test positive for marijuana it does not definitively mean that you were under the influence of marijuana when the traffic accident occurred.”

In any case, marijuana use is at the forefront in a number of fatal traffic accidents in those states where the laws pertaining to marijuana use have become less stringent. 

If you or a loved one has been the victim of motor vehicle negligence related to marijuana use and would like to speak with a Bay Area auto accident attorney, please contact us. At O’Connor, Runckel & O’Malley we have 50 years of litigation and trial experience. We are here to answer your questions and discuss how to protect your legal rights.

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