Not every car accident case involving an uncooperative insurance company warrants being filed as a full-blown lawsuit. Sometimes a car accident 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 in Los Angeles Superior Court, for example. This is where self-help services can win you some common sense justice in a small claims case.
I am Los Angeles personal injury attorney Michael Ehline. I am an expert in both civil and criminal law matters. Previously, I discussed whether it’s generally worth suing in small claims court. I examine self-representation in a Los Angeles car crash case using small claims court against the other driver’s insurance company.
So what do you do to bring a car accident small claims court case? In many situations involving minor car accidents, taking your car accident case to small claims court may be just what the doctor ordered to defeat lousy faith insurance company tactics. So read along and discover if this option is worth taking for you in a small claims court.
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 and 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 defending loser can always appeal the slight claims court loss to a jury trial court later and relitigate the car accident lawsuit against a defense attorney for the insurance company.
Small claims court judges may perform other judicial functions, like mediating cases and counseling parties, including the insurance company. To settle. Also, small claims courts may have varying names depending on the state and judicial districts your auto accident is worth filing.
Many ask: “why is a Los Angeles car accident lawyer saying go to small claims court?” First, I don’t recall saying that you should forego receiving a free legal consultation with a car accident attorney and take action against the insurance company alone.
But are you tired of Farmers, GEICO, State Farm, Mercury, etc.? If so, read on to discover the secrets of suing for a car accident in California small claims courts. Many consumers dealing with the insurance company are sick of claims adjusters and would love to file their car accident in a small claims court.
And many car accident lawyers won’t even sign a rear-ender with whiplash anymore. And this is because these insurance claims agents often treat soft tissue cases like worthless car accident claims in the eyes of the bad faith insurance company.
Or they may say it is “worth less” than you or your attorney thinks. In that case, you should consider this option when struggling to negotiate an insurance settlement for a car accident. Using small claims court allows you to settle insurance disputes legally not just for car accidents.
And typically, it gives you much more leverage against the insurance company than speaking on the phone with a trained, professional insurance adjuster. At this point, you can try and get the greedy insurance company to pay more than the original, unreasonable settlement offer that led to you filing the small claims court case. If not, a judge hears the case, and no jury is afforded by either side, including the insurance company.
And like anything else in life, if prepared, the personal injury victims have a good chance at winning against the insurance company and its negligent client in small claims court. In this article, I cover essential preparation. Also, I’ll include the advantages and problems of this process with the insurance company.
Handling car accidents as small claims court 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 that the insurance company’s client was at fault and liable to pay medical expenses, including pain and suffering.
The idea behind small claims court is to skip a car accident lawyer and avoid regular court cases with a value that slips between the cracks of filing the lawsuit in common court. Most of all, you don’t pay an attorney’s fee for fighting the insurance company on your own. So instead of taking the claims adjuster’s offer, you can oppose the insurer.
And the insurance company and its client don’t get a defense personal injury lawyer to help them argue in small claims court. In a way, small claims are a great equalizer when you and your loved one are negotiating insurance claims and writing demand letters with uncooperative insurance companies and even against an uncooperative government agency.
One advantage of filing a soft tissue small claims court case is leverage against the insurance company. The defendant gets no attorney, and neither do you, the plaintiff. Because of the suit, the defendant must prosecute their case with the insurance company pulling the strings. And this is because the insurer refused a reasonable settlement.
Insurance companies must settle insurance claims reasonably. But they try and pay for MUCH lower than they are worth. They know personal injury attorneys will have to file a lawsuit (about $600). And our Los Angeles car accident attorney must propound and respond to 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 or risk our clients firing us and hiring a bottom-feeder car accident lawyer to deal with the insurance company. The insurance company’s settlement offer is often far too small to place the plaintiff into a good bargaining position.
Sometimes the insurance settlement award offer cannot even cover the plaintiff’s medical expenses as part of the insurance company settlement. Worse, the victim still has to reimburse the plaintiff’s attorney for their costs. And the client must pay the lawyer their customary fee of a third to forty percent. Small claims court hearings cost you no attorney’s fees and leave the insurance company with an angry client.
The insurance company has an attitude of “whatever.” So if the insurance company refuses the victim a reasonable settlement, they are open to a bad-faith lawsuit, even for a minor car accident. This happens if a judgment exceeds coverage afforded by the insurance company. That is when the defendant can sue their insurer. Lousy faith law deals with cases like that.
In a small claims court case, a judgment gets entered against the defendant’s credit. So the defendant can sue their own insurance company; if proof exists, the car insurance carrier should have settled. So a verdict against the defendant can cause trouble for their 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 cannot be good 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. Either way, filing a car accident case in small claims court may be your only real option.
In a small claims court action, you, the plaintiff, have a judge decide your award. You have no jury to hear about your car accident. Small claims court trials are called “trial by judge,” and neither defendant nor the plaintiff is entitled to attorney-client representation inside the courtroom or beyond the bar.
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 insured client does not get a lawyer to argue for them. So it makes the insurance company look stupid for not making a decent settlement offer.
The insurer’s client is forced to represent themselves in small claims court without the benefit of legal representation. How uncool is that? Why even bother having car accident insurance, right?
And that legal procedure just gave you leverage over the insurance adjuster. So that definitely can force these die-hard insurance adjusters to pay for your car accident insurance claims. They would instead screw the guy who stands in line and does nothing, accepting the lowball offer. They typically are clock punchers. So make them 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 minor 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 more accessible. And it speeds up getting your information.
And for attorneys and laymen 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 essential to read these rules. And this is for your information about the process. The small claims process aims 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. And if they are 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,” you have the makings of a valid small claims lawsuit. But if you 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 assistance. 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.
Suppose filling out the “Statement of Claim” briefly provide the information. It would help if you detailed 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, etc.
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 is based on the lawsuit’s sum.
As noted above, the first step is to fill out the Statement of the Claim form. Second, you need to notify the defendant. So you must serve them with a copy of the lawsuit. “Service of Process” is how we inform the adverse party.
The notice will have the Statement of Claim attached. And also attached is a “Notice to Appear,” 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.
You should be notified of certain dates when filing the small claims lawsuit. You will need the pretrial hearing’s date, time, and place. 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.
Case over if the defendant appears at the pretrial hearing and admits fault for the car accident. 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, which is entered by the court. So this will make the terms and conditions to settle legally binding.
The judge asks why if the defendant denies the claim at the hearing. 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 case mediators set the terms of the settlement and write them down. So it gets signed by the defendant and the plaintiff. The clerk sets the case for trial if a case won’t settle through mediation.
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.
You should prepare if the date gets set for the final hearing/trial. 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 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, case particulars, and evidence. So, in the end, the court decides who won the case.
If the witnesses 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.
The judge may see no reason to ask any questions. The small claims trial is informal. And the judge will attempt to get all 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 how the legal system works hard and soon realize the odds are usually stacked against unrepresented victims. Plus, injuries and the cost of rehabilitation can create financial hardship.
The insurance companies don’t want to pay for their own policies either. Also, the parties that caused the mishap may make a similar decision and clam up.
They don’t want to the right the situation. Sometimes the defendant has no insurance, but they have garnishable 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 such judgments.
So some cases are not worth taking to a regular Superior Court with lawsuit filing and service of legal process fees surpassing $600. The leverage presented is that a small claims judgment can damage the defendant’s credit score or force 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 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 knowing the true extent of your injuries.
Obtaining a financial award can be a lengthy and costly process. Many victims don’t realize the depths of this process. It comes out of their pocket ifs. Suppose they don’t have adequate health insurance to cover this out of 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 leave your family high and dry in the process. The claim could be denied if the victim seeks a significant amount of money.
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 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 aren’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 be 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, a small claims court is a great way for a reasonably intelligent person to get money without taking it 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. Tell us about your case.
“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
Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients. We pride ourselves on being available to answer your most pressing and difficult questions 24/7. We are proud sponsors of the Paul Ehline Memorial Motorcycle Ride and a Service Disabled Veteran Operated Business. (SDVOB.) We are ready to fight.
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