The Injury Claim Process

Your case begins with building a relationship between the client and the attorneys. We like to meet face to face with our clients. This can be in the office or at our client’s home, workplace or hospital room. When an in-person meeting is not possible, we will discuss your case virtually or by telephone. In one of our first meetings, we have our clients enter into a written fee agreement and provide us with a medical release to obtain their records.

After our initial meetings, we obtain the accident report, statements from any potential witnesses, your medical records and bills, as well as any lost wage statements. We also obtain any available information on the other side’s insurance policies and any subrogation liens or amounts you must pay back to your health insurer.

Once we have obtained the applicable records and bills and conducted a preliminary investigation, we will discuss our opinions as to your case with you, how we value your case based on the known information and the best path forward. Based on the facts of the case, we may proceed to make a pre-suit demand on the other side’s insurance company or we may proceed directly to filing a lawsuit. This will not be a unilateral decision by the attorneys. We will discuss this with you prior to filing or making any monetary demand.

If we have made a pre-suit demand and the case is less complex, we may be able to negotiate with the insurance company and resolve your case. This is, however, getting more and more difficult as insurance carriers are emboldened by captive state legislatures, such as that in West Virginia and laws aimed to punish injury victims. Again, the decision to accept any settlement is yours and yours alone. We will make recommendations. We will not tell you what to do.

If the case does not settle pre-suit or we do not make a pre-suit demand, the lawsuit begins by filing a complaint, which is just a formal document setting forth the facts of your claim, the legal theories behind it and a general description of the sort of injuries you claim. The other side will then have 20-30 days to answer the complaint.

Once the lawsuit is filed and the attorneys for the defendant make an appearance and answer, the attorneys on both sides typically engage in discovery. This is a formal investigative process undertaken in compliance with the applicable court rules. Parties exchange written discovery (questions, request to produce copies of documents, etc.). We will be in touch with you at this point to gather information that we do not have and to formulate responses to written discovery.

The attorneys will also take depositions, which is testimony under oath before a court reporter. Depositions typically take place in an attorneys’ office. This is rarely as confrontational or formal as you may see on TV. The other side wants to ascertain what your medical condition was before the accident, how you believe the accident happened, and what your injuries are now and how they impact your life. This is the insurance company’s only chance to talk directly to you prior to trial, so they will be exhaustive in their questioning.

A plaintiff’s deposition can last from one hour to all day. Do not fret. We will prepare you in advance of your deposition and we will be sitting right next to you the whole time. In some cases, the attorneys will need to hire retained experts on medical or accident causation issues. This may result in additional depositions of those experts, but rarely impacts the client.

Once discovery has significantly advanced the parties will often engage in mediation. In some jurisdictions, mediation is ordered earlier in the case. It may also be done by agreement before suit is filed. In any event, a mediation is an opportunity to settle the case, and many cases settle at that point.

Typically, the parties agree upon a mediator who is usually an experienced attorney with a reputation for helping parties resolve their difference. The mediator is not on our side or their side. Her only goal is to get the case settled. In the process, the mediator will often play devil’s advocate, highlighting the weaknesses in our case in the strengths in the other side’s to us and doing the opposite when she is in the other room.

If the case does not resolve at mediation or thereafter, the judge will typically hold a pre-trial conference, where any final motions are argued, jury instructions are often discussed or determined and the case is prepared for trial. Unlike other motions hearings earlier in the case, if any, you will need to be at the pre-trial. This is because the judge will likely again try to convince the parties to settle their difference.

Sometimes, there are just too many differences in the way both sides view the case and a trial is necessary. This may be because the parties dispute the facts, for instance both drivers contend they had a green light, or because the parties simply value the plaintiff’s injuries differently. When that is the case and the parties cannot compromise, the case heads to trial.

Unlike in the movies, the attorneys are required to disclose their witnesses and exhibits prior to trial. There are, therefore, few surprises as in Perry Mason. The plaintiff (injured party) puts on his or her case first and then the defense puts on their case. (Note: The order is the opposite in Pennsylvania.) The plaintiff is permitted to present rebuttal evidence thereafter.

Once the parties have presented their evidence, they argue the case to the jury, the judge will instruct the jury on the applicable law and the case will be given to the jury to decide. The jury will deliberate and return a verdict as to any disputed factual issues such as fault and amount of damages.


Wagoner Desai, PLLC
(304) 470-2056
265 High Street, 3rd Floor
Citizens Bank Building
Morgantown, WV 26505

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