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Car Accident Attorney Bronx

7 Secrets to Maximizing Your New York Auto Accident Award

By Attorney Bryan J. Hutchinson

Auto Accident Attorney Bronx

Auto Accident and Your RightsCar Accident Attorney Bronx

If you have been involved in an accident and have been injured, Bronx car accident attorney Bronx, Bryan J. Hutchinson can help. It's important to know the facts and what your rights are after a car accident in New York. You need an experienced car accident attorney on your side. Contact the Law Office of Bryan J. Hutchinson in Bronx, NY at (718) 671-0900 for a consultation with an auto accident attorney that will get the results you need.

The following information is provided to you by car accident attorney, Bryan J. Hutchinson, to help you understand your rights after a car accident. We also provide information that can help you to see what your car accident injury is worth.

Car Accidents and the New York No Fault Law

Your right to recover for your car accident injury is limited by the Comprehensive Automobile Insurance Reparation Act, (the "No-Fault Law"). In 1973, New York State enacted its No-Fault Law for automobile accidents. This law was enacted to speed up the time it takes auto accident victims to receive medical treatment, reduce fraud and to alleviate the courts from an avalanche of auto accident cases. The No-Fault Law essentially created two paths to recover for damages from an auto accident. First, the No-Fault Law is meant to allow accident victims to recover for "basic economic loss" regardless of who is at fault. Second, you can only sue the owner or driver of the car that caused your injury if you have a "serious injury".

In enacting the No-Fault Law the legislature intended on weeding out frivolous cases and limiting recovery to significant injuries. Consequently, the court requires objective proof of your injury in order to satisfy the statutory "serious injury" threshold. In order to understand the limitations on your right to recover it is important to define three key terms:

  • Basic Economic Loss;
  • First Party Benefits; and
  • Non-Economic Loss.

Definition of Basic Economic Loss

After a car accident your lost earnings, medical, remedial and certain health care expense defined by New York Insurance law are defined as basic economic loss. You can recover basic economic loss up to $50,000, excluding loss resulting from death.

Definition of First Party Benefits

First party benefits are paid by the No-Fault insurance company. The first party benefits are paid to you, the injured person, for reimbursement of your basic economic loss.

Definition of Non-Economic Loss

Your pain and suffering with an auto injury and other non-monetary detriment is considered non-economic loss. New York Insurance law limits your recover for non-economic loss unless you prove that you have suffered what the no-fault law defines as a "serious injury".

Fundamentals of Basic Economic Loss

Basic economic loss from an auto injury covers:

  • Medical, hospital, psychiatric and other professional health care services;
  • Loss of earnings from work up to $2,000 per month for no more than three years from the date of the accident;
  • All other reasonable and necessary expenses incurred, up to $25 per day for no more than one year from the date of the accident.

In sum, unless you purchased additional coverage, the total amount of money available for any no-fault case is $50,000. The $50,000 includes up to $2,000 per month for three years of lost wages. The balance will be apportioned between medical and other necessary expenses.

Fundamentals of First Party Benefits

You will file your No-Fault claim with the host vehicle No-Fault carrier after the car accident. You do not have to prove fault in order to receive first party benefits.

Motorcycle operators and their passengers are not eligible to receive No-fault benefits. However, if you are a pedestrian hit by a motorcycle then you are eligible to receive No-Fault benefits. If you intentionally or while under the influence of drugs or alcohol cause an accident you will not be eligible for No-Fault benefits.

In addition, you are not eligible for No-Fault benefits if you are injured while committing a felony, seeking to avoid lawful apprehension, or arrest by a law enforcement officer, or occupying or operating a vehicle known to be stolen.

If the host vehicle or the offending vehicle does not have any insurance coverage then you can seek coverage under any automobile insurance in your household. If neither you nor a member of your household has auto insurance then you should file a No-Fault claim with New York State Motor Vehicle Indemnification Corporation (MVIAC).

If you suffer a "serious injury" as a result of the automobile accident then you can sue for your pain and suffering and economic loss that exceed the basic economic loss.

Stages of a Car Accident Case

When you have been injured in a car accident, you need an experienced car accident attorney on your side that knows your rights. As an experienced car accident attorney, Bryan J. Hutchinson, I will fight for your rights.

Supreme Court Action

A motor vehicle accident case may be commenced in either the Civil Court or the Supreme Court of the State of New York. The Supreme Court of the State of New York has a jurisdiction for cases with a value of $25,000 and up. The general policy at our law firm and as a car accident attorney, I prefer only to file a complaint in auto accident cases in the Supreme Court. The reason our law firm limits itself to these types of car accident cases is because the amount is over $25,000. From a cost benefit analysis viewpoint it is not prudent or efficient to incur expert cost and expenses to litigate a case with a $25,000 value.

More importantly, it is not fair to you, the client, to wait months or even years and go through a trial to walk away feeling that the time and energy invested in seeking justice was wasted. It is often wise to settle the lesser value case and save you from a delay in getting your fair compensation. In addition, it reduced the legal cost to you which is deducted from your money award. Being a auto accident attorney, I want the best for our clients and can give you a free car injury case evaluation.

Commencement of the Car Accident Injury Case

A car accident case may be commenced by the filing of a summons and verified complaint or a summons with notice. An index number is purchased from the county clerk for the current price of $210. The index number is used by the court to track the progress of the case through the court system.

If the defendant was served with a summons with notice the defendant has twenty days to respond to the summons. The defendant can either file a notice of appearance or s/he can demand a verified complaint from the plaintiff. The plaintiff has twenty days to serve the verified complaint. Upon receipt of the verified complaint the defendant can file either a verified answer or a verified answer and counterclaim. If the defendant files a counterclaim the plaintiff must answer it within twenty days or s/he may be considered in default.

If the action was commenced by the filing and service of a verified complaint the defendant has twenty days to answer the verified complaint. Upon receipt of the verified complaint the defendant may file either a verified answer or a verified answer and counterclaim. If a counterclaim is filed the plaintiff must answer the counterclaim.

Request for Judicial Intervention

Any time after the filing of the action any party may file a Request for Judicial Intervention. Upon filing of the request for judicial intervention a judge is assigned to the case. Within 45 days of the filing of the request for judicial intervention the court must send out an order for the parties and the attorneys to appear in court for a preliminary conference.

Preliminary Conference

Any time after the service of process a party may request a preliminary conference. The court will issue an order fixing the date, time and place of the preliminary conference. Clients generally do not attend the preliminary conference because there is not much that can be done at this early stage to settle the case. At this early stage the parties have not exchanged much information to make an informed decision on settling the case. Although there is not much that may be accomplished by the client's presence at the preliminary conference, counsels are expected to bring with them the bill of particulars, medical reports and orders issued by the court.

The purpose of the preliminary conference is to:

  • Simplify and limit the factual and legal issues in the case;
  • Set up a timetable for the completion of discovery;
  • The addition of a party;
  • Settlement of the action; and
  • Any other relevant matter.

Auto Accident and Discovery Process

At the preliminary conference the court will set the discovery schedule. The discovery schedule sets the time frame for the service of bills of particular, deposition, exchange of medical authorizations, employment authorization, the physical examination of the plaintiff, and other forms of discovery.

The time to complete discovery is usually measured from the date of the filing of the request for judicial intervention. In a normal case the court may limit the time for the completion of discovery to 12 months for a standard case and 15 months for a complex case.

Verified Bill of Particulars

A demand for a verified bill of particulars is a device used to demand amplification of the pleadings from the opposing party. It is not a pleading or a discovery device. A verified bill of particulars is used to provide a greater degree of particularity than is provided in the pleadings. It is used to limit the issues in the case. As one court noted "The purpose of a bill of particulars being to amplify the pleadings, limit the proof and prevent surprise at trial . . . responses to a demand for a bill must clearly detail the specific acts of negligence attributed to each defendant."

The bill of particulars must be verified in an automobile accident. The demand for a verified bill of particulars will generally seek amplification including but not limited to:

  • The date and approximate time of day of the occurrence;
  • It's approximate location;
  • General statement of the acts or omissions constituting the negligence claimed;
  • Where notice of a condition is a prerequisite, whether actual or constructive notice is claimed;
  • If actual notice is claimed, a statement of when and to whom it was given;
  • Statement of the injuries and description of those claimed to be permanent, to what respect plaintiff has sustained a serious injury, or economic loss greater than basic economic loss;
  • Length of time confined to bed and to house;
  • Length of time incapacitated from employment; and
  • Total amounts claimed as special damages for physicians' services and medical supplies; loss of earnings, with name and address of the employer; hospital expenses; nurses' services.

It is very important that you meet with us to timely complete and return the verified bill of particulars to the defendant's attorney. We must respond to a demand for bill of particulars within 30 days of the demand served upon us. The information provided in the bill of particular is crucial to what can be presented at the time of trial. This is why it is important to keep a diary, maintain contact with our office and keep track of the nature of your recovery.

Failure to comply with a demand for a verified bill of particulars may result in the court issuing an order providing that the issues to which the information is relevant is resolved in favor of the party seeking the information.

In addition, the court can issue an order prohibiting the disobedient party from supporting or opposing specified claims or defenses, from producing in evidence specified things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses.

Equally important the court can issue an order striking out pleadings or parts, or staying further proceedings until the order is obeyed, or dismissing the action in whole or in part, or rendering a judgment by default against the disobedient party. Therefore, given the harsh consequences for failing to comply with a demand for a verified bill of particulars it is important that you keep all your appointments with our office. In addition, it is important to keep us up to date on any change in your employment, address, telephone number, medical treatment and progress.

Demand for Discovery and Inspection

After the commencement of the action any party may serve a demand for discovery and inspection of papers and tangible items. This includes but is not limited to:

  • accident reports;
  • police reports;
  • medical records;
  • bills and receipts;
  • examination of physical objects, (i.e. your car);
  • employment records, including payroll records;
  • tax returns;
  • witness statements;
  • photographs;
  • recordings- sound and video;
  • films, x-rays; and
  • any other relevant paper or thing.

The law provides that where a party fails to produce documents relevant and necessary to the other party's case the party seeking the information can move to compel the non-complying party to produce the information. The consequence for the failure to produce documents and things is the same as the failure to provide a bill of particulars.

Examination Before Trial

An examination before trial, also called a deposition, is a statement under oath. The following people will be present at your deposition: (a) stenographer; (b) defense attorney (c) plaintiff (d) plaintiff attorney. You will be sworn in by the stenographer. Everything that you do and say at the deposition can be used against you at trial.

Night Before The Deposition

You should get a good night sleep. You should not consume alcohol, or take any drugs or medication that may interfere with you ability to answer questions. Warning: Before discontinuing any medication you must consult with your physician.

Morning of the Deposition

You should observe good hygiene and dress in a manner that factor in the weather. You should have breakfast before you leave your home.

Opposing Counsel

You should plan on getting to the car accident deposition early. This way you are not late or in a rush. If you arrive early you will be much calmer and a better witness. Opposing counsel is not your friend. Your early arrival to the deposition is not a license to be talkative with opposing counsel or anyone else. If you arrive early at the deposition exchange pleasantries and make sure you are in the right place. Do not discuss your case. Don't be thrown off your guard by an opponent who is pleasant and talkative.

Speaking the Truth

You must speak the truth and not lie or exaggerate about your car accident injuries. Lying or exaggerating will only lead to inconsistency between your statement, medical records and other evidence. Exaggerating about one aspect of your injury will only discredit you in other areas of your injury where you are hurt.

Answering Questions

You should answer only the question that you are asked. You must never volunteer any information about the car accident or injury.

If you do not understand a question do not answer it. Ask the opposing counsel to repeat or rephrase the question.

You should never guess the answer to any question. If you do not recall or know that answer to a question state that you cannot recall or do not know the answer.

Do not answer any question regarding other people's motivation or mind set.

Look out for leading questions that are inaccurate. If you do not agree with the statement contained in a question state your disagreement.

Do not answer any question that contains multiple questions.

Motion Practice

New York Civil Practice Law and Rules requires the disclosure of all matter necessary and relevant to the prosecution or defense of a case. If a person fails to comply with disclosure demands the party demanding the disclosure may file a motion to compel compliance and seek sanction and attorney fees. The opposing party may object to the disclosure of certain information based upon a privilege or attorney work product.

If the parties cannot resolve their discovery disputes, upon a motion the court can issue an order providing that the issues to which the information is relevant shall be deemed resolved in favor of the party seeking the information.

In addition, the court can issue an order prohibiting the disobedient party from supporting or opposing specified claims or defenses, from producing in evidence specified things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses.

Equally important the court can issue an order striking out pleadings or parts, or staying further proceedings until the order is obeyed, or dismissing the action in whole or in part, or rendering a judgment by default against the disobedient party. Given the serious consequence of not complying with discovery it is crucial that you keep all your appointments with our office.

Compliance Conference

The preliminary conference order sets the schedule for disclosure. It also sets the deadline for the parties to comply with the order and report back to the court. If a party is not compliant the other party can seek compliance through motion practice to compel compliance or seek sanctions and attorney fees.

The compliance conference order sets the deadline for the plaintiff to file the note of issue. Upon the completion of discovery the plaintiff files a Note of Issue and Certificate of Readiness. This tells the court that all outstanding discovery demands have been satisfied and the case is ready to proceed to trial.

If discovery is not completed by the compliance conference date then the parties are required to contact the court for a Status Conference.

Pre-Trial Conference & Settlement Conference

Generally, after the filing of the Note of Issue and the Certificate of Readiness the court orders a pre-trial conference. The pre-trial conference is usually held between 15 and 45 days before the anticipated trial date.

At the pretrial conference the parties and the court will attempt the following:

  • simplify and limit the issues in the case;
  • stipulate to the admission of facts and documents to avoid unnecessary submission of proof;
  • amend the pleading or the bill of particulars;
  • schedule trial dates;
  • limit the number of expert witnesses;
  • consider any other relevant matter.

Car Accident Trial – The Battleground

Although the majority of car accident cases are settled without a trial there are instances in which the case must proceed to trial. The insurance companies are in business to make a profit. If they believe that a payout is not justified they will not settle the case. They may not settle the case because they believe that the plaintiff's demands are too high or simply that they believe that the case is without merit. This is where all the hard work and preparation pays off. At this stage the plaintiff is center stage where the jurors will determine whether the defendant is liable for the plaintiff's action or whether the plaintiff should be driven out of court with his or her bare hands.

At the time of car accident injury trial both you and I are at center stage. Every aspect of your persona will be judged by the jurors. They will judge you from your clothing to your demeanor in court. You must observe proper hygiene and wear conservative clothing to court. Women should wear a dark or navy dress, skirt and blouse or business pant suit. It is suggested that men wear a navy blue suit. I do not recommend wearing any jewelry to court, except your wedding band if you are married. If you are married you must wear your wedding band. Research has shown that married men who do not wear their wedding band are trusted less than married men who do. However, if your must wear jewelry do not wear any expensive jewelry, dangling earrings, diamonds, multiple rings on one hand, gold bracelets or Rolex watches. You do not want to give the impression that you will waste your jury award on flashy jewelry. What you may consider appropriate jewelry may be considered flashy by some jurors. You want to show respect for yourself and the court.

Jury Selection

There are five stages to a jury trial. The first stage is jury selection. At this stage our goal is to find a jury of your peers who will listen and then deliberate on the merits of your case. The remaining four stages are:

  • Opening Statement;
  • Direct Examination;
  • Cross Examination; and
  • Summation.

Both the plaintiff and the defendant are entitled to an opening statement. The opening statement is my first chance to speak directly to the jurors about the merits of your case. It is my opportunity to make an impression and lay out a road map of your case. It gives me an opportunity to give the jurors the theory of how the defendant is liable because of his negligent act or failure to act. And to prove how the defendant's conduct was a substantial factor in causing your injuries. It gives me an opportunity to reveal our strengths and our weaknesses in the case. Weaknesses such as a criminal record for fraud must be disclosed to the jurors. If we allow the defense counsel to first bring these weaknesses out then we will look like we were trying to hide facts. Remember, jurors trust people who are honest and upfront.

Direct Examination

Direct examination puts you at center stage to tell your story. You are telling the judge and jurors the facts that prove that the defendant was negligent in acting or failing to act under the circumstance of your case. Direct examination will begin by you telling the jurors about your background. Such as your name, address, marital status, occupation, and whether you have any children, etc.

In direct examination the rules call for open ended questions. Questions are generally in the form or who, what, when, where, how, explain, tell me or show me. Leading questions are generally not permitted on direct examination except as necessary to develop your testimony. Prior to our day in court we will meet in my office and go over the facts and refresh your memory regarding the accident and your recovery. My goal is simply to make you tell your story in a logical and clear manner.

On direct examination we will reveal the bad facts that are the weaknesses I revealed to the jurors in my opening statement. Every case has weaknesses and there is nothing wrong with conceding undisputable facts.

There is an old English proverb that says, "The eyes are the windows of the soul." Good eye contact allows you to connect with the jurors. Maintaining good eye contact will allow the jurors to see your sincerity and know that you are a credible witness. Maintaining good eye contact without staring the jurors down allows you to talk in a conversational manner. Keep in mind how you speak with your family or friends. When you speak with your family or friends you do not look at the floor or ceiling. Think of the testifying before the jurors as if you are before your friends and family telling them about the unfortunate auto accident.

Cross Examination

After I finish my direct examination of you the defense attorney is allowed to conduct a cross examination. The purpose of the cross examination is to test the credibility of your testimony given on direct examination. The defense counsel is allowed to ask you leading questions. The defense counsel will attempt to discredit you through your ability to recall events. If you have a criminal record the defense counsel will ask you about your criminal conviction. He will try especially to impeach your credibility if you have been convicted of a crime involving dishonesty.

Four keys points to remember for a smooth cross examination:

  1. Rude or Disrespectful Conduct Toward Defense Counsel

    You must always be cool, calm and collected on cross examination. You should never be rude or disrespectful to opposing counsel no matter how much s/he tries to ruffle your feathers. Acting loud or upset will only prejudice your case. Jurors will not like you if you are rude or obnoxious and will punish you with a defense verdict.

  2. Evading Questions

    If defense counsel asked you a proper question you should answer it directly. It is my job to object to improper questions. Improper questions are questions that violate the rules of evidence or certain rules the judge has ordered or the parties stipulated to in the case. Your failure to answer to questions asked by defense counsel will make you look evasive. Evasiveness is equivalent to being untruthful.

  3. Talkative Witness

    Don't be a talkative witness. Answer only the question that is asked of you. Do not volunteer information. I will get an opportunity to clarify your answers on re-direct examination.

  4. Exaggeration of Facts

    The exaggeration of facts is just as bad as lying. A good defense attorney will make what you may consider a little embellishment of facts into a major lie in the case.

Summation

The summation or closing argument is the last opportunity for me to speak as your accident attorney, directly to the jurors. It is my last chance to convince the jurors of the merits of your case. At this point all the facts and evidence are already presented to the jurors. However, I will have an opportunity persuade the jurors by re-enforcing the story I have told during opening statement by highlighting the key facts and evidence that support our case. Here I get to put the facts and evidence into a logical and coherent manner that supports our theory of how the defendant is liable because of his negligent act or failure to act. And to prove how the defendant's conduct was a substantial factor in causing your injuries. It is a call to action to render a verdict for damages in your favor because it is the right and just thing to do.

Contact auto accident lawyer Bronx, NY, Bryan J. Hutchinson or get a free injury case evaluation online.

Auto Accident Attorney Bronx Call (718) 671-0900