Settlement or Trial: Which is Better For Your NY Personal Injury Claim?

Accidents that involve personal injury in New York occur either because someone intended to cause harm, or because they behaved in a negligent manner. When an individual acts with the intention of breaking the law or in order to cause harm, their actions will be legally examined under intentional tort law. However, if you have been injured in an accident that was caused not intentionally, but due to the party at fault breaching their duty of care, you can raise a negligence tort claim. Accidents that involve personal injury in New York occur either because someone intended to cause harm, or because they behaved in a negligent manner. When an individual acts with the intention of breaking the law or in order to cause harm, their actions will be legally examined under intentional tort law. However, if you have been injured in an accident that was caused not intentionally, but due to the party at fault breaching their duty of care, you can raise a negligence tort claim. Anyone who has been injured in a slip-and-fall accident or a car accident or sustained an injury due to a defective product or as a result of medical malpractice can file a personal injury case under New York State’s civil practice law. These cases are tried in the courts of New York located in each of the 5 boroughs of New York City. What is the Procedure to File a Personal Injury Lawsuit in New York? The legal process of filing a personal injury lawsuit in NYC begins with drafting a petition which is a legal document identifying to the court the parties involved in the case. This petition gives details of the actions of the negligent party (called the defendant) that caused the accident victim (called the plaintiff) to suffer damages. In this document, you must also spell out the nature of the injury and damages you sustained and explain the relief you seek in compensation for the loss you had to suffer. After drafting this petition, it has to be filed in the appropriate New York court of the county that has jurisdiction over the case. In most cases, jurisdiction is decided based on where the accident or injury occurred or based on where the party lives. Filing the petition is a crucial step and must be completed within the time frame specified in the statute of limitations. After filing the lawsuit, you have to serve the defendant with the summons that has been issued by the court where you filed the petition, along with a copy of your petition. This summons orders the defendant to come forward to file their answers to your petition. What Happens After You File a New York Personal Injury Lawsuit? After the defendant has filed their answers to the plaintiff’s petition, both sides get the opportunity to find out more or to ‘discover’ about the claims and evidence of the other party. This process is called discovery, and it involves the exchange of both oral and written questions and answers. The issuing of subpoenas for records and the ordering of the records also takes place during this phase. In the more simple cases, discovery can be completed within four to six months but in more complex cases, it has been known to stretch to several years, too. Written discovery As part of written discovery, an experienced personal injury lawyer in NYC will use one or more of the following: Request for admissions which are simple questions that the defendant can admit to or deny Request for disclosure involves more specific questions that require detailed answers from the defendant Request for production is used to ask the other side to produce documents Interrogatories include questions that will be used by a lawyer to learn more about the opposite side’s claim Oral discovery Oral discovery or a deposition refers to the process of getting information under oath from a person who has knowledge that is relevant to the case. This process occurs at a place and time that has to be agreed upon by the attorneys of the parties involved in the case. Either of the parties in the case may be deposed; someone who has been a witness to the injury or an expert who can shed more light on the injury can also be a part of the deposition. Issuing of subpoena and ordering of records Along with the deposition, an attorney can order the production of records such as medical records and bills through a subpoena or an affidavit. Other records commonly ordered include police reports, employment records, tax returns, and repair bills. What is Alternative Dispute Resolution in Personal Injury Cases? Alternative dispute resolution (ADR) is a set of processes such as negotiation, arbitration, or mediation where the parties work to arrive at a resolution of the case without resorting to litigation. These procedures are generally faster and less expensive than a court trial. In mediation, a trained mediator who is a neutral party works with the concerned parties to resolve their conflict through the process of negotiation. Arbitration is a more formal process as compared to mediation but not as formal as a court trial. Arbitration generally involves a private hearing where all the parties give their evidence to arbitrators who are neutral entities who will arrive at a resolution. When you choose to file a personal injury lawsuit in New York, it is best to engage the services of an attorney who has extensive experience with all forms of resolving a personal injury dispute whether it is a settlement, arbitration, mediation, or a court trial. What Does a Personal Injury Case Court Trial Involve in NYC? A court trial is the last stage of the process of litigation that flows through the stages of a jury selection, opening statement, and presentation of evidence followed by the closing argument and the final judgment and verdict. Trials may be completed in a few days or go on for weeks together based on the complexity of the case. Jury selection During this, the lawyers of both sides question the prospective jurors to finally select the jury. Every side has access to a specific number of peremptory challenges that can be used to strike a juror for any non-discriminatory reason. Both sides also have access to unlimited strikes for the cause which can be used when a prospective juror’s reply to a question shows that they are incapable of being an impartial and fair juror. Opening statement This refers to that part of the trial where each side gets time to explain what exactly the case is to the jurors. Statements made during this time are not considered as evidence and the purpose is to give an overview of what the evidence will show and the verdict that the lawyers expect the jury to give. Evidence presentation During this stage, witnesses are called upon to provide their oral testimony in front of the jury. It is during this phase that the photographs and documents are provided as evidence and also when the examination and cross-examination of witnesses occurs. Closing argument In this stage, the lawyers of both sides are provided a fixed amount of time to talk to the jury and argue the meaning of the evidence. Lawyers use this opportunity to explain how the jury should use the evidence presented to reach a conclusion in their favor. The plaintiff’s side gets to divide the time they have into two parts – an initial opening and a rebuttal after the defense has concluded their closing argument. Rendering of the verdict and judgment Once the closing arguments have been concluded, the jurors retire to the jury room and take time to consider the information they have received in keeping with the court’s instructions. When the jury is made up of 12 persons, 10 of them at least must agree on the jury questions that have been given to them. Once an agreement is reached, the jury conveys it to the court, and then it will be read out to the parties. However, if the jurors do not reach a conclusion accepted by 10 members, the result is a mistrial. After considering the jury’s answers to the questions from a legal standpoint, the court finally gives the final judgment. The side that has lost in the personal injury trial is given 30 days to either pay up or to pursue an appeal. Injured in an NYC Accident? Get in Touch With Us Today for the Right Legal Advice Being injured in an accident can be a devastating experience and understandably, your priority will be recovering your health. However, as soon as you have received the necessary medical treatment, it is critical that you take steps to pursue damages for an injury you had to suffer for no fault of your own. If you or a loved one has been hurt due to the negligence of another person in New York City, get in touch with our accident attorneys who are available 24/7 to give you free legal advice. At Rosenberg, Minc, Falkoff & Wolff, LLP, our personal injury lawyers know the importance of acting quickly to ensure justice for our clients. We have the resources to build you a strong case that can obtain for you maximum compensation through either negotiation or a court trial based on the specifics of your case. To discuss your case with a compassionate and knowledgeable lawyer, get in touch with our law firm today at 212-344-1000 or contact us online for a free and confidential case evaluation. Gary Silverstein Gary Silverstein has been a partner of Rosenberg, Minc, Falkoff & Wolff since 2001, and an associate of the firm since 1989. Mr. Silverstein graduated with a Bachelor of Science degree from State University of New York College at Oneonta in 1983. Mr. Silverstein holds a degree of Juris Doctor from the University of Miami School of Law, having graduated in 1988.

Anyone who has been hurt in an accident in New York caused by the negligence of another party has the legal right to seek compensation for their loss. Some personal injury cases get settled out of court after successful negotiation with the insurance company representing the party at fault. In cases where there is disagreement about the compensation being offered, the accident victim may decide not to settle and instead, proceed to go to trial to get their rightful due. Anyone who has been hurt in an accident in New York caused by the negligence of another party has the legal right to seek compensation for their loss. Some personal injury cases get settled out of court after successful negotiation with the insurance company representing the party at fault. In cases where there is disagreement about the compensation being offered, the accident victim may decide not to settle and instead, proceed to go to trial to get their rightful due. Going the court trial way is a highly time-consuming and costly process. Negotiating a voluntary settlement outside of court is therefore often viewed as an easier way to quickly resolve the case. If you choose this option to deal with your personal injury claim, it is important to make sure you get a fair value as compensation. General Procedure in a Settlement Negotiation in New York Soon after having sustained the personal injury, you must present a demand letter and other supporting documents to the insurance company. Following this, you will have to communicate with the insurance adjuster to discuss the strengths and weaknesses of the claims you have presented. The adjuster will then make their offer of settlement and this will typically be lower than what you have asked for in your demand letter. You will have to make a counteroffer that is lower than the amount you initially demanded, but higher than what the adjuster has offered. After some further bargaining, both parties may agree on a settlement amount that lies somewhere in between both their initial offers. Reasons Why Your Claim may be Diminished Insurance companies are generally reluctant to part with money and there are several reasons that a claims adjuster may quote to diminish the value of your claim. The most common ones include: You did not seek medical care immediately after the accident but waited for many days. You were also responsible for the accident and therefore, the insured person is not 100% liable for the damages you suffered. The injuries you suffered are not significant enough to justify the amount of time you took off from work. The cost or length of your medical treatment is unreasonable as per current standards. Your injuries are a mere aggravation of an already existing health condition or previous injury you suffered and therefore, not new. The compensation you are seeking for your pain and suffering is unreasonably high. Topics that may Come up During Negotiation During a settlement negotiation, insurance adjusters cover a wide range of topics, asking questions that seek to dispute the facts you have presented. These questions are more often than not designed to test how firm you are about the strengths of your case and also to limit the compensation you receive. The most common topics discussed during such negotiations include the following: How extensive were your injuries? Did they cause a disability or a long-term impact on your health and lifestyle? Who was liable for the accident? What was your contribution to the negligence that caused the injury? Does the insurance policy actually cover the accident? Were the medical treatment procedures and therapy you received really necessary to treat the injuries? Did you have any previous health condition that aggravated the current injury and caused you to sustain greater loss? Tips for a Successful Negotiation of Your Personal Injury Settlement in New York It is a good strategy to provide reasonable answers to the questions raised by an insurance adjuster during the personal injury negotiation settlement process. However, you must also stay alert to the fact that some adjusters may seek to make you settle for less than what is due to you by using unfair tactics. Here are a few tips to successfully negotiate your way to the personal injury settlement that is your actual due. Set a Minimum Settlement Amount in Your Mind At the time of preparing the demand letter for personal injury settlement, you are likely to have arrived at what you believe to be a reasonable range for the settlement amount. Before speaking to the insurance adjuster, make sure you have mentally decided on a minimum settlement amount. You don’t need to reveal this during the negotiations; it only serves as a tool to keep you focused on what is and isn’t acceptable to you. During the negotiation, it may become obvious that newly uncovered evidence or facts call for an upward or downward revision of this minimum amount. In such situations, do not blindly cling to your previous resolve; stay flexible to accommodate the new facts so that you get the best possible deal. Ask for More Information Adjusters may begin the conversation by making a very low offer. Often, this may be a tactic to check how well you know your case’s worth or to find out how desperate you are for a settlement. When faced with such a low offer, ask for specific information that justifies it and make a note of the points raised. Later, write to the adjuster and respond to each of these points, and wait to see if they are agreeable to what you suggest. Most adjusters in such situations realize that you are not someone who can be intimidated into accepting a low figure and this will force them to come up with a more reasonable settlement offer. Never Jump at the First Offer you Receive When the insurance adjuster makes their first offer, evaluate it to understand its real nature. Never quietly accept the very first offer that is made. Adjusters often make ridiculously low offers as a negotiating tactic to see how firm you are about the validity of your claims. If the offer is lower than what you expected but still, a reasonable one, make your counteroffer that’s slightly lower than your initial demand. This conveys openness to negotiation and with a little more effort, you should be able to bargain to reach a settlement figure that is agreeable to both parties. Draw Attention to the Emotional Aspects of the Case Make it a point to emphasize the emotional aspects of your case during the settlement negotiation. Refer to how badly smashed your car was, or highlight how your injuries prevented you from caring for a young child or elderly parents dependent on you. If an investigation threw up evidence of the at-fault driver being distracted or driving under the influence of alcohol, bring up these aspects to strengthen your arguments. Although it isn’t possible to put a price on such emotional issues, they can make an impact on the insurance company’s willingness to settle the claim. Be a Smart Negotiator After the initial discussion and your first counteroffer, wait until the adjuster communicates their decision. Never reduce your personal injury claim further until they make a better offer. Reducing your demand more than once sends is bad bargaining because it sends across a signal of your being desperate for a settlement. If the adjuster raises further points, examine them and see if they are valid, and then decide whether to accept their revised offer or to continue to hold your ground. Capture the Settlement Terms in Written Form After both parties reach an agreement on the settlement amount, have the insurance adjuster confirm it for you in writing. Write a letter stating the details that have been agreed upon such as the amount of the settlement, the damages it will cover, and the date by when you will receive the documents from the insurance company. This documentation will prevent any situation of the adjuster backing off at a later date. Engage an Experienced Personal Injury Attorney in NY A study conducted by the Insurance Research Council in 1999 showed that settlements tend to be about 3.5 times higher when the injured person engages a legal team to handle their case. This is quite a sizeable figure and can make a huge difference to the amount you are able to recover in damages. If your injuries are of a more serious nature and your claims run into tens of thousands of dollars, it is a good idea to engage the services of an experienced personal injury attorney. The presence of an attorney indicates that you are serious about pursuing your claims and quite willing to take the legal route to a trial and this ensures that the adjusters come up with far more reasonable offers of settlement. If you have suffered a personal injury in New York due to the negligence of another party, get in touch with our skilled personal injury attorneys at Rosenberg, Minc, Falkoff & Wolff, LLP. If you or a loved one have been hurt in a car or truck accident or suffered due to medical negligence or sustained a slip-and-fall accident, call our attorneys at 212-344-1000 or contact us online to schedule a free consultation. Whether it is negotiating with the insurance adjusters or even pursuing the case to trial, our team will help you build a case that’s strong enough to fetch you the maximum compensation that you rightfully deserve. Gary Silverstein Gary Silverstein has been a partner of Rosenberg, Minc, Falkoff & Wolff since 2001, and an associate of the firm since 1989. Mr. Silverstein graduated with a Bachelor of Science degree from State University of New York College at Oneonta in 1983. Mr. Silverstein holds a degree of Juris Doctor from the University of Miami School of Law, having graduated in 1988.

If you suffer injuries or monetary losses as a result of a third party’s actions (negligent or otherwise), you can bring a tort claim against them with the help of an NYC personal injury attorney and seek damages. The process of recovering damages through a New York City personal injury lawsuit generally involves several steps – each of which has its own procedural requirements. With the help of an experienced attorney, you can expedite the process to a great extent and recover the compensation you deserve. If you suffer injuries or monetary losses as a result of a third party’s actions (negligent or otherwise), you can bring a tort claim against them with the help of an NYC personal injury attorney and seek damages. The process of recovering damages through a New York City personal injury lawsuit generally involves several steps – each of which has its own procedural requirements. With the help of an experienced attorney, you can expedite the process to a great extent and recover the compensation you deserve. Steps Involved in a New York Personal Injury Case Filing a Summons and Complaint This is the very first step in filing a personal injury lawsuit in New York City. In this step, the personal injury attorney who represents you will file a summons and complaint with the court on your behalf. The complaint generally contains the name and date of the accident, the injuries you suffered, the legal basis for your claim, and other relevant facts. The summons informs the defendant (the person who caused the accident) why they are being sued and notifies them that they must respond to your complaint within 30 days. The purpose of filing a summons and complaint is to inform the defendant and the court what your lawsuit is all about. Once it is filed, the court will assign an index number to your case. It is a unique number which can be used to track your case. Serving the Summons and Complaint to the Defendant After filing the summons and complaint with the court, your attorney will serve a copy of the same to the defendant, so that they can respond to it. The case papers can be served in three ways. In Person Delivery – The complaint papers are personally handed to the defendant. Substituted Delivery – The complaint papers are handed to a third party who can hand them to the defendant. Conspicuous Delivery – The complaint papers are left in a place where they are most likely to be found by the defendant. A copy of the complaint is also mailed to the defendant’s address. Under New York law, a summons and complaint can be served by a process server or by any third party who is over the age of 18. It should be noted that anyone who is a party to the lawsuit is prohibited from serving the papers to the defendant. They are, however, allowed to accompany the person who serves the papers. If the papers are not served to the defendant in a timely manner or if they are not served in the right way (as mentioned above), the defendant can cite it as a reason – commonly referred to as bad service – and request the court to dismiss your case. If it happens, you have to start the process all over again. So, it’s fundamental to make sure your case papers are served in compliance with the law. The Answer to the Complaint Once the defendant receives the summons and complaint, they are required to respond to it within a period of time (usually 30 days). In their response – commonly referred to as the answer – the defendant will deny the allegations against them and state why they should not be held accountable for your injuries. In some cases, instead of responding to the complaint, the defendant might choose to request the court to dismiss the case – if they believe that there is a legal basis to do so. If the defendant does not ask the court to dismiss your case and fails to respond to your complaint within the stipulated period of time, your attorney can file a request with the court to obtain a default judgment. A default judgment can be issued in favor of the plaintiff (the injured party) in the absence of the defendant – if the latter fails to respond to the summons served to them. In rare cases, the defendant might respond to your complaint with what is called a counterclaim. A counterclaim – as the term indicates – contains claims against you – made by the defendant. It is essentially a reversal of the situation where the defendant accuses you of negligent or wrongful action. If you are served with a counterclaim by the defendant, you can respond to it – just like the defendant responded to your complaint – with the help of your NYC personal injury attorney. Discovery This is a key step in the litigation process where your side and the other side can exchange information which is relevant to the case so that you both know what you are up against. This is done to make sure one side does not blindside or ambush the other at the trial by producing a surprise witness or submitting hidden evidence which can stack the odds in their favor. Generally, there are four ways in which one side can get the information they want from the other side. These include: 1. Interrogatories Interrogatories are a set of questions that one side can send to the other side to get the information they need. The other side is required to respond to the questions in writing and under oath. The other side can also do the same to get the information they need. 2. Requests for Production One side can request the other side to produce copies of documents that are relevant to the case. 3. Requests for Admission One side can ask the other side to admit or deny a claim, allegation, or material fact related to the case. 4. Depositions A deposition is a process where the attorney representing a party can question the other party or the witnesses on their side in the presence of a court reporter. The person who answers the questions must do so under oath. The person who is being questioned has the right to object if they believe a question is improper or irrelevant to the case. How Your Social Media Posts Can Impact Your Case It is important to note that the defendant’s side will be carefully monitoring your social media accounts right from the day you file the claim. Even if you make your accounts private, the defendant’s side can still ask you to allow them to access your social media feed – if they believe that the information you have posted could be useful to the case. If you upload anything – pictures, videos, or posts – that contradicts your official statements regarding the accident and the injuries you suffered, the defendant’s side can use it against you and question the veracity of your claims against the defendant. Even something as innocuous as posting a picture of yourself in a happy mood with the caption ‘feeling great’ can be used by the defendant’s attorney to question whether you are really as injured as you claim to be. This is one of the important reasons why New York City personal injury attorneys generally ask their clients to stay away from social media until their case is settled or a verdict is delivered. Objecting to Discovery Under New York law, both the plaintiff and the defendant have the right to object to the discovery demands of each other – if they believe that the other side’s question or request is irrelevant to the case or asks for too much information, which they are not under obligation to provide. Demanding Response from the Other Side In case the defendant does not respond to a legitimate discovery demand from your side, your attorney can request the court to order the defendant to respond to your query. The court will – depending on the legitimacy of your discovery demand – order the defendant’s side to respond within a certain amount of time. If the defendant’s side fails to respond to your query even after being ordered by the court, your attorney will file a motion to hold the defendant in contempt of court. The defendant’s side too can do the same if you fail to respond to their queries during the discovery process. Physical Examination During the course of the discovery process, you might be asked to undergo a physical examination by a doctor of the defendant’s choosing. The purpose of this examination is to find out whether you are really injured and whether your injuries are as serious as you claim to be. Since the doctor who examines you will be looking for reasons to reject or reduce the value of your claim, you should avoid discussing the details of the accident with them. You should only tell them about the injuries you sustained or the physical and mental conditions you have developed as a result of the accident. Pre-Trial Negotiations Before your case goes to trial, your attorney and the defendant’s attorney will try to reach an out-of-court settlement. This is because the trial process can be expensive and time-consuming for all the parties involved. So, they will negotiate with each other and see if it is possible to find a middle ground regarding the outcome of the case. If your side and the defendant’s side manage to reach an agreement, the case can be settled without a trial. Your attorney – along with the defendant’s attorney – will prepare what is called a ‘stipulation of settlement’ – which both parties have to sign. It should be noted that the settlement agreement is legally binding on both parties. The defendant has to pay you the sum of money that they agreed to pay you during the pre-trial negotiations. Similarly, you have to voluntarily give up your right to sue the defendant for damages in the future. If the defendant fails to pay you the compensation even after signing the settlement agreement, your attorney will file a request with the court to make the defendant comply with the terms of the agreement. Trial If your attorney and the defendant’s attorney fail to reach an agreement, your case will proceed to trial. At the start of the trial, your attorney and the defendant’s attorney will be given the opportunity to make their opening statements. In their opening statement, your attorney will tell your side of the story, state relevant facts that can support your claim, and explain why you are suing the other party and why you deserve to be compensated. Similarly, the defendant’s attorney will tell their side of the story and explain why they cannot be held liable for your injuries. After making their opening statements, both attorneys will present the documentary evidence they have and call the witnesses to testify. The attorneys have the right to question each other’s witnesses. Once all the evidence is submitted before the jury, the attorneys will be given the opportunity to make their closing arguments. In their closing argument, your attorney will tell the jury about what happened to you as a result of the defendant’s negligence, how your injuries will continue to impact your life, and why you deserve the compensation you are asking for. In their closing argument, the defendant’s attorney will defend their client and tell the jury why their client cannot be held liable for their injuries. Once the closing arguments are made, the jury will deliberate for a period of time – which can be anywhere from a few minutes to a few days – after which they will deliver a verdict. If the verdict is in your favor, the jury will specify the amount to be paid as compensation by the defendant. If it is in the defendant’s favor, your lawsuit will be dismissed. If the losing side believes that there were factors at work that prevented them from getting a fair trial, they can file a motion with the court for a new trial. Similarly, if they do not agree with the verdict, they have the right to approach the appellate court and request to change or overturn the verdict issued by the lower court. NYC Personal Injury Claim – Why Your Legal Representation Matters As you can see, filing a claim against an at-fault party and recovering damages from them can be a tedious and time-consuming process. Even the slightest mistake or procedural lapse on your part can greatly affect your chances of recovering compensation. So, it’a critical to hire a skilled and accomplished NYC personal injury attorney who can accurately guide you through the litigation process and help you get the right amount of compensation you are entitled to. To learn more, c all Rosenberg, Minc, Falkoff & Wolff, LLP today at 212-344-1000 or contact us online for a free and confidential consultation. Gary Silverstein Gary Silverstein has been a partner of Rosenberg, Minc, Falkoff & Wolff since 2001, and an associate of the firm since 1989. Mr. Silverstein graduated with a Bachelor of Science degree from State University of New York College at Oneonta in 1983. Mr. Silverstein holds a degree of Juris Doctor from the University of Miami School of Law, having graduated in 1988.