Not every car accident case warrants being filed as a full-blown lawsuit. Sometimes a lawyer won’t touch your car accident for various reasons beyond your control. Other times, you may not want to share an attorney’s fee, and don’t want the costs of regular trial court fees.
So what do you do? Well, in many of these situations, taking your car accident case to small claims court may be just what the doctor ordered. So read along and discover if this is an option worth taking for you.
A: In the State of California, small-claims courts are a type of limited jurisdiction court that hears smaller dollar amount civil disputes against companies as well as private individuals. Courts authorized to try small claims conduct what is called a “trial by judge.” In exchange for a lower potential payout, the jury is dispensed with, since the loser can always appeal the loss to a jury trial court later. Small claims judges may also perform other judicial functions, like mediating cases and counseling parties to settle. Also, small claims courts may have varying names depending on the state and judicial districts.
Many ask: “why is a Los Angeles car accident lawyer saying go to small claims court?” First of all, I don’t recall saying that. But are you tired of Farmers, GEICO, State Farm, and Mercury, etc.? Then read on. Many consumers are sick of claims adjusters.
And many lawyers won’t even sign a rear-ender with whiplash anymore. And this is because these claims agents often treat soft tissue cases like they are worthless.
Or they may say it is “worth less” than you or your attorney thinks. In that case, you should consider this option. Using small claims court allows you to settle insurance disputes legally. And typically, it gives you a lot of leverage. At this point, you can try and get the greedy insurance company to pay more than the original, unreasonable offer that led to you filing the case. If not, a judge hears the case, and no jury is afforded either side.
And like anything else in life, if prepared, the personal injury victims have a good chance at winning. In this article, I cover basic preparation. Also, I’ll include the advantages and problems of this process.
Handling car accidents as small claims actions may be the way to go. In particular, this article deals with low impact, soft-tissue claims, and how to win over the judge with evidence.
The idea behind small claims is to skip a lawyer and avoid regular court for cases with a value that slips between the cracks of filing the case in regular court. Most of all, you don’t pay an attorney’s fee. So instead of taking the claims adjuster’s offer, you can fight the insurer. And they don’t get a lawyer to help them argue in small claims court. In a way, it is a great equalizer.
One advantage of filing a soft tissue small claims case is leverage. The defendant gets no attorney, and neither do you, the plaintiff. Because of the suit, the defendant must litigate their own case. And this is because the insurer refused a reasonable settlement.
Insurance companies must settle claims reasonably. But they try and settle for MUCH lower than they are worth. They know personal injury attorneys will have to file a lawsuit (about $600). And we have to do written discovery (10-25 hours). After that, we take depositions ($1000 plus driving, travel, etc.).
To top it off, we will be under pressure to settle. And many times, the offer is far too small to place the plaintiff into a good position. Sometimes the award cannot even cover the plaintiff’s medical expenses. Worse, the victim still has to reimburse the attorney for their costs. And the client must pay the lawyer their customary fee of a third to forty percent.
Their attitude [the insco] is “whatever.” So if they refuse a reasonable settlement, they are open to a bad-faith lawsuit. This happens if a judgment exceeds the coverage. That is when the defendant can sue their insurer. Bad faith law deals with cases like that.
In a small claims case, a judgment gets entered against the defendant’s credit. So the defendant can sue their own company; if proof exists, the carrier should have settled. So a verdict against the defendant can cause trouble for his or her insurer. For example, the defendant may complain to the Insurance Commissioner.
And the defendant can raise cane with a bad-faith lawsuit for damaged credit. Plus, they might write negative reviews on Google Places, etc. It can be bad for the insurance company. The defendant will often assign their rights to the bad faith lawsuit, in exchange for you, the plaintiff letting them off the hook. All of this creates more negotiating power for the personal injury victim.
In a small claims action, you, the plaintiff, get to have a judge decide your award. You have no jury. And there are no discovery costs (see supra). Also, you can do service via mail instead of a process server. And no attorneys means no attorney’s fees.
The potentially damaged credit score against their insured presents a settlement issue. Also, their client, the insured, does not get a lawyer to argue for them. So it makes the insurance company look stupid for not making a decent settlement offer. Their client is forced to represent themselves. How uncool is that? Why even bother having insurance, right?
And that definitely can force these die-hard insurance adjustors to pay. They would instead screw the guy who just stands in line and does nothing. They typically are clock punchers. So make em work.
The small claim resolves civil disputes with small amounts of money. The amount for injury claims depends on whether the other party maintains liability insurance. If insurance exists with a defense duty, the plaintiff’s maximum damages award is $7 thousand, five hundred dollars, or less. And this excludes court costs, interest, and attorney’s fees.
If no insurance policy exists with a duty to defend, the max amount the plaintiff can win is $10 thousand dollars for car accidents and other civil claims. And this is how small civil disputes resolve. But again, this involves a small sum of money. And it gets heard in the county court, civil division.
As an individual you can sue for damages for bodily injuries resulting from an auto accident if your claim is for $10,000 or less, a $7,500 limit applies if a defendant is covered by an automobile insurance policy that includes a duty to defend. (Source).
116.224. (a) Notwithstanding Section 116.221, the small claims court has jurisdiction in an action brought by a natural person for damages for bodily injuries resulting from an automobile accident if the amount of the demand does not exceed seven thousand five hundred dollars ($7,500).
In the state of California, rules of procedure exist for these cases. And these are called the Small Claims Rules. These rules assist in making the small claims process easier. And it speeds up getting your information.
And for attorney and layman alike, it’s easier to navigate and understand than regular civil court. The rules are contained within the California Rules of Court. Companion rules are in the California Statutes Annotated. And these are easily located at any law library and many public libraries.
Before filing a small claims lawsuit, it is important to read these rules. And this is for your information about the process. The aim of the small claims process is to resolve minor civil disputes.
It gets done through the court system. But it bypasses the more complicated and formal judicial process. The trade-off is the award for a lower amount.
The person filing a small claims lawsuit must be over 18 years of age. And if under 18, they will require a parent or guardian to register for them.
For claims of more than $5,000, the filing fee is $75. What if another person owes you money, or has your property? And what if they refuse to return it? Then you may find a resolution in small claims. But before filing, you should try and talk with the accused. So maybe send them a letter. Then try and resolve the dispute.
But if your queries go unanswered, go to small claims court.
The following are questions you should ask, before filing:
If the answers are “yes,” then chances are, you have the makings of a valid small claims lawsuit. But if you still remain unsure, an attorney could advise and tell you if you have a valid complaint. Also, they can explain the evidence you will need to prove your claim. And this is all necessary to win.
If you feel you need an attorney, contact the local bar association. Also, the California State Bar has a free referral service. Next, you may qualify for free legal service. In some cases, pro-bono lawyers help at the local Legal Aid Service.
You will need to contact the Clerk of Court after preparations:
Lawsuits all begin by submitting a complaint form. This is a “Statement of Claim.” It will get tabled in the clerk’s office. If you need help filling out forms, the clerk can direct you.
If filling out the “Statement of Claim,” provide the information in a brief manner. You must detail the facts of the case. Most of all, you need to justify the amount you seek.
Also, you must have the full name and address of the defendant listed. And if the claim has written documents, attach them. Items include notes, leases, repair bills, contracts, or other things.
Duplicates of originals should be attached to the form. And a fee goes to the court clerk. And this is known as a filing fee. Last, the amount of this fee gets based on the sum of the lawsuit.
As noted above, the first step is to fill out the Statement of Claim form. Second, you need to notify the defendant. So you must serve him or her with a copy of the lawsuit. “Service of Process” is how we notify the adverse party.
The notice will have the Statement of Claim attached. And also attached will be a “Notice to Appear,” which is a summons.
Next, these papers get served in one of two ways.
The plaintiff can also pay a fee to have the clerk send the lawsuit by mail. But if the plaintiff wins, it remains possible to recover court costs from the defendant.
If these two methods are unsuccessful, other options may be available. But you must contact the Clerk’s Office.
When filing the small claims lawsuit, you should be notified of certain dates. You will need the date, time, and place of the pretrial hearing. This is called a pretrial conference. And this is because a trial or final hearing comes later. The pretrial hearing is to determine issues in the dispute.
If the defendant fails to appear, certain things will happen. First, the judge will order a prove-up hearing. Here, the judge must see proof the lawsuit got filed in the proper county. Next, he will check to see if the defendant got notified. Then the court will enter a default against the party.
So the court issues a final entry of judgment against the defendant. And this means the defendant defaulted. But the judge must rule if the damages in the lawsuit are valid.
If the defendant appears at the pretrial hearing and admits fault for the car accident, case over. Now you can collect from the defendant’s insurance company right away. So, in that case, no trial takes place. But if the defendant appears, loses the case, and is broke, with no insurance, the plaintiff can agree to payment terms and have the court sign off. This is called a stipulation between the parties, and this gets entered by the court. So this will make the terms and conditions to settle legally binding.
If the defendant denies the claim at the hearing, the judge asks why. And if the accused fails to have a valid defense, the judge will tell them. Because of this, the court will advise them a judgment could go against them.
If a valid defense exists, the judge may order mediation. If the judge orders mediation, it could happen at the courthouse. Often it takes place at the time of the pretrial hearing. Most of the time, mediators are volunteers.
If the case settles during these negotiations, the cases mediators set the terms of the settlement and write it down. So it gets signed by the defendant and the plaintiff. If a case won’t settle through mediation, the clerk sets the case for trial. The next step is to inform the judge how many witnesses will testify. The judge can now determine the time needed to hear all of the witnesses. If the parties want to testify, they must include themselves too.
If the date gets set for the final hearing/trial, you should get prepared. Preparing includes having all of the evidence you will present at trial. Also, it lists any documents. And it lists the witnesses you intend to call to testify.
If you feel that a witness may fail to show up for the court, you can subpoena them. If a witness has no subpoena and fails to appear, the judge will continue without that witness. The judge will refuse to let you return with the missing things or witnesses.
The judge will request that both the plaintiff and the defendant tell the facts. They must also show all of the evidence and proof. The witnesses will testify. Then the judge will weigh the testimony, facts of the case, and evidence. So, in the end, the court decides who won the case.
If the witnesses all speak, the plaintiff and defendant have told their sides of the case. But the judge may ask questions to clarify issues. However, this won’t always happen.
In fact, the judge may see no reason to ask any questions. The small claims trial is informal. And the judge will attempt to get all of the facts from both parties. So he can make a fair and accurate decision in the case.
Another step to take is to appeal the judgment to the superior court. In this situation, the procedure for appealing a decision can become complicated. And it is recommended to consult an attorney.
To recap, in the turmoil of a severe car or work accident, many victims want to repair the shattered pieces of their lives. However, many find out the hard way how the legal system works and soon realize the odds are usually stacked against unrepresented victims. Plus, injuries and the cost of rehabilitation can create a financial hardship.
The insurance companies don’t want to pay out on their own policies either. Also, the parties that caused the mishap may come to a similar decision and clam up. They don’t want to right the situation. Sometimes the defendant has no insurance, but they do have garnish-able wages and assets, like a house, or a car. But most lawyers won’t take a case like that due to the costs of enforcing judgments and the chances the defendant can bankrupt judgments such as this. So some cases are not worth taking to a regular Superior Court with lawsuit filing and service of legal process fees surpassing $600 dollars. The leverage presented is that a small claims judgment can damage the defendant’s credit score, or force a bankruptcy. So at least the plaintiff has a fighting chance at getting paid something.
A lawyer specializing in personal injury law is the best protector for injured victims when the case value surpasses the small claims payouts. These lawyers also end common self-representation errors, even if it is a “smaller case.” Also, injury attorneys handle various types of mishaps from auto wrecks to workplace disasters. This experience lends valuable expertise to the victim that needs it the most. Some of the most common errors that we see include the following:
Many times the hurt victims are unsure of the first step to take. In facing the aftermath of an accident, they’re without insight. Victims aren’t sure if they should contact a personal injury attorney. At times, the person hurt will attempt to sort through the information alone.
They also make common mistakes in talks with the insurer. These mistakes could include statements made construed as an admittance of guilt. Also, it may be as simple as unwitting acceptance of an offer. This “confession” can happen without the knowledge of the true extent of your injuries.
To obtain a financial award can be a lengthy and costly process. Many victims don’t realize the depths of this process. If they don’t have adequate health insurance to cover treatment, it comes out of their pocket. In other cases, years of rehabilitation can bankrupt families.
So if you’re asking for a moderate amount, the insurance company might accept the settlement. But settling too soon can also leave your family high and dry in the process. If the victim seeks a significant amount of money, the claim could be denied altogether.
This rejection can happen before knowing the sheer scope of the harm sustained. Some of the damage and its symptoms don’t show up right away. Later noticed pain and injury could mean it’s unknown how your long-term prognosis will play out. So your ability to work and enjoy your life can all hang in the balance.
Lack of organizational skills is a frequent problem that remains greater than many people know. Injury attorneys train for years to learn how to present a case in and out of court. The lawyer’s training helps the client get the most out of the claim. Also, the lawyer will understand the nuances of injury law and the courtroom. Filing a claim in the wrong court, or past the time limit may doom it right out of the gate.
Courtroom procedure and out of court isn’t the same as Law and Order. The average injured victim balances many aspects of recovery, at the same time as dealing with the claim. Many insurers and reckless drivers give their “final” offer. That is way below what can and should become offered to you. Because they’re desperate, too many victims jump on the proposal. They believe that they won’t have a better offer.
In the negotiating process victims may believe:
In most limited and unlimited jurisdiction civil cases, not hiring an attorney to handle the case can mean a loss. Please understand that the insurer’s legal team will try to devalue your claim. The insurers use tricks that can sink a complaint. That being said, not all personal injury cases require a lawyer or a lawsuit. Some can be settled. When it doesn’t make economic sense to hire a lawyer, small claims court is a great way for a reasonably intelligent person to get money without taking it all the way to a regular Superior Court.
Above is accurate information and guidelines on small claims limitations and advantages. But you need to ensure the best outcome in your small claims lawsuit. And some motor vehicle injury lawyers will do all your small claims evidence books for you in exchange for their regular attorney’s fee.
And sometimes, these lawyers agree to handle any appeal later filed by the losing defendant. If you have questions, contact Michael P. Ehline, Esq. He works at Ehline Law Firm Personal Injury Attorneys, APLC. His direct line is (213) 596-9642.
“Cases for $10,000 or Less.” Cases for $10,000 or Less – money self-help. N.p., n.d. Web. 25 Dec. 2016.
“California Court, The Judicial Branch of California – Small Claims” https://www.courts.ca.gov/selfhelp-smallclaims.htm
“Evaluating rehabilitation for personal injury claimants.” https://www.ncbi.nlm.nih.gov/pubmed/8486444
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